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This is a Bill, not an Act. For current law, see the Acts databases.
BUILDING BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Planning)
Building
Bill 2003
Contents
Page
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Planning)
A Bill for
An Act to regulate buildings and building work, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Building Act 2003.
This Act commences on the commencement of the Construction Occupations
(Licensing) Act 2003, section 6.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this
Act defines certain terms used in this Act, and includes references
(signpost definitions) to other
terms defined elsewhere.
For example, the signpost definition
‘occupation class—see the Construction
Occupations (Licensing) Act 2003,
dictionary.’ means that the expression
‘occupation class’ is defined in that dictionary and the definition
applies to this Act.
Note 2 A definition in the dictionary
(including a signpost definition) applies to the entire Act unless the
definition, or another provision of the Act, provides otherwise or the contrary
intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Part
2 Important
concepts
6 Meaning
of building work
(1) In this Act:
building work means—
(a) work in relation to the erection, alteration or demolition of a
building, and includes disposal of waste materials generated—
(i) by the alteration of a building other than a building excluded under
the regulations; or
(ii) by the demolition of a building (but not part of the building);
or
(b) work in relation to repairs of a structural nature to a
building.
(2) The regulations may—
(a) exempt a kind of work from the definition of building
work; or
(b) include a kind of work in the definition of building
work.
(1) In this Act:
building includes—
(a) a structure on or attached to land; and
(b) an addition to a building; and
(c) a structure attached to a building; and
(d) part of a building, whether the building is completed or
not.
Example of part of
building
footings poured for a building that is being built
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) However, building does not include—
(a) a vehicle or craft that is not used or adapted for use as a class of
building or structure classified under the building code; or
(b) a transportable building, mobile home, caravan or similar
that:
(i) is not used for long-term habitation; and
(ii) is readily transportable without disassembly or without removal from
associated components including a footing, pier, stump, rigid annexe or an
attached building or similar; or
(c) something exempted under the regulations.
(3) To remove any doubt, something is not excluded from the definition of
building only because it is temporary or novel.
Example
a building used in connection with a fair, circus, carnival, celebration,
market, show, concert, display, exhibition, competition, training event,
recreational event or publicity event is not excluded on the basis of its
temporary or novel nature
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(1) In this Act:
structure includes—
(a) a fence, retaining wall, swimming pool, ornamental pond, mast,
antenna, aerial, advertising device, notice or sign; and
(b) a thing prescribed under the regulations as a
structure.
(2) However, structure does not include something that is
part of a machine or mechanical plant unless it is—
(a) part of something classified as a building or structure by the
building code; or
(b) prescribed under the regulations for this section.
9 Meaning
of specialist building work
In this Act:
specialist building work—
(a) means—
(i) the installation of a swimming pool; or
(ii) the demolition of a building; and
(b) includes building work prescribed under the regulations as specialist
building work.
10 Meaning
of basic building work
(1) In this Act:
basic building work—
(a) means the following building work:
(i) erecting a prefabricated class 10a building;
(ii) erecting a class 10a outbuilding;
(iii) installing fireplaces or solid-fuel heaters;
(iv) non-structural work; but
(b) does not include specialist building work.
(2) In subsection (1):
non-structural work—
(a) means work on a part of a building that does not, or is not intended
to, carry a structural load imposed or transmitted by another part of a
building; and
(b) includes work on non-load bearing walls, doors, partitioning,
reticulated pipework, ventilation ductwork and building fit-out items;
but
(c) does not include the following work:
(i) work that may affect the structural integrity of a structural element
of a building, or weaken or remove, completely or partly, the structural
element, if the element is installed in a way that it carries, or can carry, a
load of part of a building;
(ii) work that involves the use of a structural element to carry, or to
possibly carry, a structural load of part of a building.
Example for par (c) (i)
work that affects the existing bracing beams on a multi-storey car park if
the bracing beams are designed to bear wind load, even though most of the time
they do not carry any load
Examples for par (c)
(ii)
1 the installation of a new storey on a building
2 underpinning a subsiding building
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The regulations may—
(a) exempt a kind of work from the definition of basic building
work; or
(b) include a kind of work in the definition of basic building
work.
11 Act
does not affect other ACT laws
This Act does not affect the operation of any other law in force in the ACT
relating to land use or to the provision of services for a building.
Example of related laws not
affected
Electricity Safety Act 1971
Scaffolding and Lifts Act 1912
Utilities Act 2000
Water and Sewerage Act 2000
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
In this Act:
exempt building means a building prescribed under the
regulations.
Note Exempt building is used to narrow the application of pt
3, pt 5 and pt 6.
13 Certain
buildings excluded from Act
(1) This Act does not apply to a temporary building (other than a
dwelling) if—
(a) the temporary building is erected on the site of building work for the
erection or alteration of another building; and
(b) building approval has been obtained for the building work;
and
(c) the temporary building is to be removed on completion of the building
work.
(2) This Act does not apply to a building prescribed under the
regulations.
14 Temporary
exemptions for buildings
(1) The Minister may, in writing, exempt a building from the application
of this Act or a provision of this Act for a stated period.
(2) The period stated in the exemption must not be longer than 1
year.
(3) If no period is stated in the exemption, the exemption is in force for
1 week.
(4) An exemption may be conditional.
Examples of conditions
1 restricting number of people allowed in the building
2 requiring the fire brigade to be present outside the building when it is
used for a stated event
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(5) An exemption is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
15 Building
work to which pt 3 does not apply
This part does not apply to—
(a) building work in relation to an exempt building; or
(b) building work exempted under the regulations.
16 Meaning
of stage in pt 3
In this part:
stage, of building work, means a stage prescribed under
section 43 (1).
Division
3.2 Certifiers and government
certifiers
17 Definitions
for div 3.2
In this division:
certifier does not include government certifier.
eligible person, for building work—see section
18.
government certifier, for building work, means a person who
is appointed under section 20 (4) for the work.
18 Eligibility
for appointment—certifiers and government certifiers
A licensed construction practitioner (an eligible person) is
eligible to be appointed certifier or government certifier for building work if
the construction practitioner—
(a) is entitled under the Construction Occupations (Licensing) Act
2003 to perform services as certifier for the work; and
(b) is qualified under the regulations to be appointed for the
work.
19 Appointment
of certifiers
(1) The owner of land where it is proposed to carry out building work may
appoint an eligible person (the certifier) as certifier for the
work.
Note An appointment must be in writing (see Legislation Act, s
206).
(2) The appointment ends if—
(a) the certifier stops being an eligible person; or
(b) the owner of the land revokes the appointment by written notice given
to the certifier; or
(c) the certifier resigns the appointment.
(3) The certifier may resign the appointment only—
(a) with the written approval of the construction occupations registrar;
and
(b) by written notice given to the owner of the land.
(4) The construction occupations registrar may approve the resignation of
the certifier only if satisfied that—
(a) the certifier cannot exercise his or her functions in relation to the
building work because of mental or physical incapacity; or
(b) the certifier has arranged for another certifier to take over the
certifier’s functions in relation to the building work; or
(c) it is otherwise appropriate to approve the resignation.
20 Appointment
of government certifiers
(1) This section applies to building work if the last certifier appointed
for the work is no longer the certifier for the work.
(2) A certifier is no longer the certifier for building work
if—
(a) the certifier’s licence is suspended for longer than
3 months; or
(b) the certifier’s licence has been cancelled; or
(c) the certifier has resigned the appointment under section 19;
or
(d) the certifier is dead; or
(e) for a building certifier in the same occupation class as the
certifier—the certifier is not covered by insurance required under the
Construction Occupations (Licensing) Act 2003.
(3) The owner of the land where the building work is being carried out (or
proposed to be carried out) may apply to the construction occupations registrar
for the appointment of a government certifier for the work.
Note If a form is approved under s 150 for an application, the form
must be used.
(4) The construction occupations registrar may appoint a government
certifier for the building work if satisfied that the criteria prescribed under
the regulations are satisfied.
(5) The regulations may prescribe what must accompany the
application.
(6) In this section:
licence means a building surveyor licence under the
Construction Occupations (Licensing) Act 2003.
21 Power
to require building documents
(1) A government certifier appointed for building work may, by written
notice, require the person who was the certifier (or last certifier) for the
building work to give the government certifier any building document the person
has in relation to the work within the period (that is not less than 2 weeks
after the day the notice is given) stated in the notice.
(2) A person commits an offence if the person contravenes a notice given
to the person under subsection (1).
Maximum penalty: 50 penalty units.
(3) An offence against subsection (2) is a strict liability
offence.
(4) In this section:
building document means a document mentioned in
section 48 (2).
22 Protection
of government certifiers from liability
(1) A government certifier does not incur civil or criminal liability for
an act or omission done honestly as a government certifier.
(2) A civil liability that would, apart from this section, attach to the
government certifier attaches instead to the Territory.
23 Entitlement
to act as certifier
(1) A licensed construction practitioner is not entitled to perform
services as a certifier in relation to building work if he or she has an
interest in the work.
(2) For this section, a licensed construction practitioner has an
interest in building work if the practitioner, or a person related
to the practitioner—
(a) has a legal or equitable interest in the land where the building work
is, or is to be, carried out; or
(b) has prepared, or intends to prepare, drawings intended to be used in
relation to the construction of the building work; or
(c) has carried out, or intends to carry out, any of the building work;
or
(d) has a financial interest in the construction or completion of the
building work.
(3) For this section, a person is related to a licensed
construction practitioner if the person is—
(a) a person with whom the practitioner has a personal, professional,
commercial or financial relationship; or
(b) an employer or employee of the practitioner; or
(c) a company of which the practitioner is a director or in which the
practitioner holds a share.
(4) This section does not prevent a certifier from sketching a required
design solution as part of a direction under section 44 (2).
24 Notice
of certifier’s appointment or end of appointment
(1) This section applies if—
(a) a building approval has been issued for building work; and
(b) either—
(i) a person is appointed certifier for the work; or
(ii) a person’s appointment as certifier for the work
ends.
(2) Within 7 days after the day the person is appointed or the appointment
ends, the person must give the construction occupations registrar written notice
of the appointment or end.
Note If a form is approved under s 150 for a notification, the form
must be used.
(3) An offence against subsection (2) is a strict liability
offence.
25 Prohibition
against contracting out of pt 3
A provision in a contract or agreement is void if it limits or modifies, or
purports to limit or modify, the operation of this part, including this section,
in relation to a certifier or building work.
Division
3.3 Building approvals
26 Building
approval applications
(1) The owner of a parcel of land may, in writing, apply to the certifier
for a building approval for building work to be carried out on the
land.
Note At common law, an agent may make an application on the
owner’s behalf.
(2) The application must—
(a) be accompanied by the number of copies of the plans relating to the
proposed work prescribed under the regulations; and
(b) be accompanied by a waste management plan if the building work
involves—
(i) the demolition of a building; or
(ii) the alteration of a building other than a class 1, class 2 or class
10a building.
Note If a form is approved under s 150
for an application, the form must be used.
(3) The regulations may require the application to contain other details
or be accompanied by other material.
27 Certifier
not to consider certain applications
(1) A certifier must not consider an application under section 26
unless—
(a) the plans that accompany the application comply with any requirements
prescribed under the regulations; and
(b) if the regulations require consultation with, or the consent or
approval of, an entity—the entity has been consulted or has consented or
approved as required under the regulations; and
(c) if the application is made on behalf of the owner of the parcel of
land—it is made by an agent authorised in writing by the owner;
and
(d) the training levy has been paid.
(2) In this section:
training levy means the training levy under the Building
and Construction Industry Training Levy Act 1999.
28 Issue
of building approvals
(1) This section applies if—
(a) an application for a building approval is made to the certifier under
section 26; and
(b) the certifier may consider the application; and
(c) section 30 (External design and siting considerations) does not apply
to the application.
(2) The certifier must issue the building approval if satisfied on
reasonable grounds that the plans meet each approval requirement under section
29.
(3) If the certifier issues a building approval—
(a) the building approval must be marked on, attached to or partly marked
on and partly attached to, each page of the plans it relates to; and
(b) the certifier must initial and mark his or her licence number on each
page of the plans.
Note If a form is approved under s 150 for a building approval, the
form must be used.
(4) However, if, because of the size of the plans, it is impractical to
mark the building approval on each page of the plans, the certifier may, instead
of marking the approval under subsection (3) (a), mark each page of the plans
with an indication that the approval, or part of the approval, is in a separate
document.
(5) A certifier who issues a building approval must—
(a) give a copy of the approval and the relevant plans as soon as
practicable to the person who applied for the approval; and
(b) within 7 days after the day of issue, give to the construction
occupations registrar—
(i) a copy of the approval; and
(ii) a copy of the relevant plans; and
(iii) if notification of the certifier’s appointment has not
previously been given to the registrar—notification of the
appointment.
Note 1 If a form is approved under s 150 for a notification of
appointment, the form must be used.
Note 2 A fee may be determined under s
149 for this section.
(1) Each of the following is an approval requirement for
plans:
(a) if the plans are for the substantial alteration of a
building—the building as altered will comply with this Act;
Note 1 Substantial alteration—see s (2).
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and the
building code (see Legislation Act, s 104).
(b) if the plans are for the erection of a building—the building as
erected will comply with this Act;
(c) if a waste management plan is required to accompany the
application—the plan is adequate;
(d) the building as proposed to be erected or altered will be structurally
sufficient, safe and stable.
(2) The regulations may prescribe when an alteration to a building is a
substantial alteration.
(3) However, a building does not fail to comply with this Act under
subsection (1) only because the plans for the building or alteration contain
something to which the building code does not apply.
(4) For subsection (1) (c), a waste management plan is
adequate if—
(a) the plan satisfies any requirements prescribed under the regulations;
and
(b) there is a recycling facility for the reuse or recycling of material
mentioned in the plan and the plan states that the material will be disposed of,
if practicable, at the facility.
(5) The Minister may, in writing, declare that a facility outside the ACT
is suitable to reuse or recycle stated material.
(6) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(7) In this section:
recycling facility, for material, means—
(a) a facility in the ACT where the material is reused or recycled;
or
(b) a facility outside the ACT that the Minister has declared is suitable
to reuse or recycle the material under subsection (5).
30 External
design and siting considerations
(1) A certifier must not issue a building approval if, because of the
external design or siting of a proposed building, or of a building as proposed
to be altered, the carrying out of the building work to which the application
for the approval relates would result in the contravention of this Act or any
other law in force in the ACT.
(2) This section does not apply to building work forming part of a
development that is not required to be approved under the Land Act, division
6.2.
(3) In this section:
external design, in relation to a building, includes anything
affecting the appearance of the exterior of the building.
31 Application
for amendment of approved plans
(1) This section applies if—
(a) a building approval has been issued for building work; and
(b) the owner of the parcel of land where the building work is being, or
is to be, done proposes to amend the plans for the work.
(2) The owner may apply, in writing, to a certifier for approval for the
proposed amendment of the plans.
Note If a form is approved under s
150 for an application, the form must be
used.
32 Amendment
of approved plans
(1) This section applies if an application under section 31 for the
amendment of plans has been made to a certifier.
(2) The certifier must approve the plans as amended and amend the building
approval only if—
(a) the approval requirements, so far as they apply to plans, are
satisfied in relation to the plans as amended; and
(b) the application would not be refused because of section 30
(External design and siting considerations) if it were an application for a
building approval; and
(c) a building built to the amended plans would not be significantly
different from a building built to the unamended plans.
Note The regulations may prescribe when a building is significantly
different (see s (4)).
(3) If the certifier cannot approve the plans as amended, the certifier
must tell the applicant in writing that the application is refused.
(4) The regulations may prescribe when a building built to amended plans
is significantly different from a building built to unamended plans.
33 Marking
approval of amendment
(1) If a certifier approves plans as amended under section
32—
(a) the amended building approval must be marked on, attached to or partly
marked on and partly attached to, each page of the plans; and
(b) the certifier must initial and mark his or her licence number on each
page of the plans.
Note If a form is approved under s 150 for a building approval, the
form must be used.
(2) However, if, because of the size of the plans, it is impractical to
mark the amended building approval on each page of the plans, the certifier may,
instead of marking the amended building approval under subsection (1) (a),
mark each page of the plans with an indication that the approval, or part of the
approval, is in a separate document.
(3) The certifier must—
(a) give a copy of the amended approval and the amended plans as soon as
practicable to the person who applied for the approval; and
(b) within 7 days after the day of issue, give to the construction
occupations registrar—
(i) a copy of the amended approval; and
(ii) a copy of the amended plans; and
(iii) if notification of the certifier’s appointment has not
previously been given to the registrar—notification of the
appointment.
Note 1 If a form is approved under s 150 for a notification of
appointment, the form must be used.
Note 2 A fee may be determined under s
149 for this section.
34 Effect
of issue of further building approval
(1) This section applies if—
(a) a building approval is in force for building work; and
(b) another building approval is issued for the building work (whether or
not the approval also relates to other building work).
(2) The first building approval ends because of this section.
35 Land
to be used in accordance with lease
The issue of a building approval for building work on a parcel of land does
not authorise—
(a) for land leased from the Commonwealth—use of the land for a
purpose other than that for which the lease was granted; or
(b) use of the land contrary to a provision, covenant or condition of any
lease on the parcel.
36 Period
for which approvals operate
(1) A building approval operates until the end of the earliest of the
following:
(a) 3 years beginning on the day of its issue;
(b) the development period applying to the building work;
Note A building approval ends if a further approval is issued for
the same building work (see s 34).
(2) If the development period applying to the building work is extended,
the certifier may extend the period of operation of the building approval to a
day that is no later than the day the extended development period
ends.
(3) However, subsection (2) does not authorise the extension of the period
of validity of a building approval to a day that is more than 3 years after the
day the approval was issued.
(4) In this section:
development period means a period within which, under another
law in force in the ACT or a condition of the relevant lease, the building work
must be completed.
Division
3.4 Building commencement
notices
37 Building
commencement notice issue
(1) This section applies if—
(a) a building approval has been issued for building work; and
(b) under the Construction Occupations (Licensing) Act 2003, any of
the work must be done by a licensed builder; and
(c) a licensed builder has been engaged to do the work.
(2) The licensed builder may apply, in writing signed by the owner of the
parcel of land where the building work is to be done, to a certifier for a
commencement notice for the work or part of it.
Note 1 The ordinary rules of agency apply in relation to an
application under this section.
Note 2 If a form is approved under s 150
for an application, the form must be used.
(3) If the application is for residential building work, the application
must be accompanied by—
(a) a residential building insurance policy for the work; or
(b) a certificate issued by an approved insurer stating that the insurer
has insured the work under a residential building insurance policy; or
(c) a fidelity certificate for the work issued by the trustees of a scheme
approved under division 6.4 (Approved fidelity fund schemes).
(4) On receiving the application, the certifier must issue a building
commencement notice for the building work if satisfied on reasonable grounds
that the builder’s licence authorises the work in the building
approval.
Note 1 ‘Under’ includes ‘in accordance with’
(see Legislation Act, dict, pt 1, def under), so an application
must comply with this section before it can be approved.
Note 2 If a form is approved under s 150
for a notice, the form must be used.
(5) If a certifier issues a building commencement notice, the certifier
must give a copy of it to the construction occupations registrar within 1 week
after the day of its issue,
(6) In this section:
approved insurer means an authorised insurer
who—
(a) has had a form of residential building insurance policy approved by
the construction occupations registrar; and
(b) has not given to the registrar a notice under section 95 (Duties
of insurers).
residential building work—see section 84.
38 Automatic
end of building commencement notices
(1) A building commencement notice for building work ends
if—
(a) for residential building work—the work is no longer insured;
or
(b) the building approval for the work ends.
(2) In this section:
insured, for building work, means—
(a) the work is insured under a residential building insurance policy;
or
(b) a fidelity certificate is in force for the work by the trustees of a
scheme approved under division 6.4 (Approved fidelity fund schemes).
39 Application
for cancellation of building commencement notice
(1) This section applies if a building commencement notice is in force for
building work.
(2) The licensed builder mentioned in the building commencement
notice—
(a) may apply, in writing, for cancellation of the building commencement
notice; and
(b) if the builder does apply for its cancellation—must give to the
owner of the parcel of the land where the work is being, or is to be,
done—
(i) a copy of the application; and
(ii) a notice that states that the owner has 2 weeks (the
representation time) to make representations to the construction
occupations registrar about whether the building commencement notice should be
cancelled.
Note If a form is approved under s 150
for an application, the form must be used.
(3) The application must explain why the building commencement notice
should be cancelled.
40 Decision
on building commencement notice application
(1) This section applies if—
(a) the construction occupations registrar receives an application under
section 39 for the cancellation of a building commencement notice; and
(b) either—
(i) the representation time for the application has ended; or
(ii) the owner of the land where the building work is being, or is to be,
done agrees in writing to the cancellation.
(2) If the representation time has ended without the owner of the land
agreeing to the cancellation, the construction occupations registrar must
consider any representation made by the owner within the representation
time.
(3) The construction occupations registrar may cancel the building
commencement notice if satisfied—
(a) that the builder mentioned in the notice cannot do the building work;
or
(b) it is otherwise appropriate to cancel the notice.
41 Multiple
or part building commencement notice
(1) Two or more building commencement notices for the same building work
may be in force at the same time.
(2) A building commencement notice continues to operate for building work
even if the building work being done is only part of the building work for which
the commencement notice was issued.
Division
3.5 Carrying out building
work
42 Requirements
for carrying out building work
(1) Building work must not be carried out
except in accordance with the following requirements:
(a) the materials used in the building work must comply with the standards
under the building code for the materials in buildings of the kind being built
or altered;
(b) the way the materials are used in the building work must comply with
their acceptable use under the building code for buildings of the kind being
built or altered;
(c) the building work must be carried out in a proper and skilful
way;
Note The considerations to be taken into account to decide when work
is carried out in a proper and skilful way may be prescribed under
the regulations (see s (2)).
(d) building work for which an approved plan is required must be carried
out in accordance with the approved plans;
(e) the building work required to be done by a licensed builder must be
carried out by or under the supervision of the builder mentioned in the building
commencement notice;
(f) the building licensee in charge of the building work must
take—
(i) all the safety precautions stated in or with the application for the
building approval; and
(ii) any other safety precaution that a certifier or building inspector
may require the building licensee to take under section 46.
(2) The regulations may prescribe considerations to be taken into account
to decide whether building work is carried out in a proper and skilful
way.
43 Stages
of building work
(1) The regulations may prescribe stages of building work.
(2) A building licensee in charge of building work must not proceed with
any building work above dampcourse level unless—
(a) the certifier has received—
(i) a plan (a survey plan) signed by a registered
surveyor stating the position of the building in relation to the
boundaries of the parcel of land where the building is to be erected and stating
the level that the floor or floors of the building will have in relation to a
level stated in the approved plans; or
(ii) another document prescribed under the regulations; and
(b) the certifier is satisfied that the position of the building and the
level of the floor or floors are in accordance with—
(i) the approved plans; and
(ii) the conditions to which any consent or approval mentioned in section
27 (1) (b) is subject.
Maximum penalty: 50 penalty units.
(3) A building licensee in charge of building work that has reached a
stage must not proceed with building work beyond the stage
unless—
(a) the licensee has given to the certifier notice that the stage has been
reached; and
(b) the certifier has inspected the building work and given written
permission for the work to proceed.
Maximum penalty: 50 penalty units.
(4) If a building licensee in charge of building work is required under
section 44 (5) to conduct a test, the licensee must, as soon as practicable
after the test is completed, give the person who made the requirement the
written results of the test.
(5) An offence against this section is a strict liability
offence.
(1) If a certifier receives a notice under section 43 (3) (a) for building
work, the certifier must inspect the building work as soon as
practicable.
(2) On, or as soon as practicable (but in any case within 2 business
days), after inspection, the certifier must—
(a) if satisfied on reasonable grounds that the building work does not
comply with section 42 (Requirements for carrying out building work)—give
the building licensee in charge of the building work written directions that are
reasonable and appropriate for achieving compliance; or
(b) if satisfied on reasonable grounds that building work complies with
section 42—certify that the work complies and give the certificate to the
building licensee in charge of the building work.
(3) A certifier commits an offence if the certifier contravenes
subsection (1) or (2).
Maximum penalty: 10 penalty units.
(4) An offence against subsection (3) is a strict liability
offence.
(5) A certifier may, by written notice, require the building licensee in
charge of the building work to conduct, on the materials used or to be used in
the work, on the structure of the building, or in relation to anything else
connected with the work, the tests stated in the notice.
(1) A building licensee in charge of building work must keep records
of—
(a) any test borings, test loadings or other investigations made to work
out the permissible loadings on piles used in the building work, pile-driving
operations, calculations of allowable loadings and details of the location of
the piles; and
(b) any test loadings and excavations made to work out the bearing
capacity of the foundation for the building or proposed building, or building as
proposed to be altered; and
(c) tests under section 44 (5).
(2) A record under subsection (1)—
(a) must be kept until a certificate of occupancy for the building work is
issued; and
(b) must be given to the certifier when the certificate of occupancy is
issued.
46 Safety
precaution directions
(1) This section applies if—
(a) building work for which a building approval has been issued is being
carried out at or near a street or place that is open to or used by the public;
and
(b) a building inspector or certifier finds, on inspection, that
inadequate safety precautions in relation to the building work are being taken
to protect the safety of people using the street or place.
Examples
1 George is building a swimming pool on his property, but the property is
not yet fenced and is open to the street.
2 Building work is being done on an area of the ground floor of a building
in Civic to which the public have access.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The building inspector or certifier may, in writing, give the building
licensee in charge of the building work directions about the safety precautions
that the inspector or certifier believes on reasonable grounds are necessary to
protect the safety of people using the street or place.
(3) Subsection (2) applies—
(a) whether or not safety precautions were submitted to the certifier who
issued the building approval; and
(b) if safety precautions were submitted—whether or not those
precautions are being complied with.
(4) The building licensee in charge of the building work must comply with
a direction under subsection (2).
Division
3.6 Completion of building
work
47 Structural
engineer’s certificate
(1) A certifier may require the owner of a parcel of land where building
work is being, or has been, carried out to give the certifier the certificates
by professional engineers about the structural sufficiency, soundness and
stability of the building as erected or altered for the purposes for which the
building is to be occupied or used.
(2) The certifier may require the certificates only if satisfied on
reasonable grounds that it is desirable to do so in the interests of people who
occupy or use, or are likely to occupy or use, the building or part of the
building that is being, or has been, erected or altered.
(3) The certifier may require the certificate at any time before or after
the completion of building work.
48 Completion
of building work
(1) This section applies if building work appears to have been completed
and the certifier is satisfied on reasonable grounds that—
(a) the work has been completed in accordance with this Act and
substantially in accordance with the approved plans; and
(b) the building as erected or altered is structurally sufficient, sound
and stable for the purposes for which it is to be occupied or used.
(2) Within 7 days after the day the certifier is satisfied, the certifier
must give to the construction occupations registrar the following:
(a) if a consent or approval mentioned in section 27 (1) (b) was required
to be obtained—written evidence of the consent or approval;
(b) a copy of the plan or document mentioned in section 43 (2)
(a);
(c) a copy of each certificate issued for the building work under section
44 (2);
(d) if the regulations require that, on completion of the building work,
the consent or approval of anyone is to be obtained—written evidence of
the obtaining of the consent or approval;
(e) a certificate by the certifier that the building work has been
completed in accordance with this Act and substantially in accordance with the
approved plans;
(f) if a certificate has been obtained under section 47 (Structural
engineer’s certificate)—the certificate;
(g) if no certificate under section 47 has been obtained—a written
statement to the effect that—
(i) the certifier is satisfied that the building as erected or altered is
structurally sufficient, sound and stable for the purposes for which it is to be
occupied or used; and
(ii) no certificate under section 47 is required;
(h) if, in the certifier’s view, the requirements of a stated
subsection of section 69 (Certificate of occupancy) have been
satisfied—written advice that the registrar would be justified in issuing
a certificate of occupancy for the building under the section;
(i) a copy of the following documents and papers relating to the building
work:
(A) any application to the certifier under this Act and any accompanying
document;
(B) all plans or drawings;
(C) any approval, certificate, determination, notification or permission
issued or given (a relevant document);
(D) any certificate or other document given or prepared by someone else
that the certifier has relied on for the purpose of issuing or giving a relevant
document;
(E) the certifier’s working papers and calculations that are
relevant to the issuing or giving of a relevant document.
(3) The construction occupations registrar may, in writing, exempt a
certifier from complying, completely or partly, with anything mentioned in
subsection (2) (i) in relation to building work stated in the
exemption.
(4) A certifier is not required to give the construction occupations
registrar a copy of a document or paper mentioned in
subsection (2) (i) if—
(a) the certifier has already given to the registrar, under this Act, the
document or paper, or a copy of the document or paper; or
(b) the registrar has exempted the certifier under subsection (3)
from giving the copy.
(5) This section applies in relation to a part of a building in the same
way as it applies to a building.
49 Complying
with building code
(1) A person must carry out building work only in a way that will, or is
likely to, result in a building that complies with
the building code.
Maximum penalty: 50 penalty units.
(2) An offence against subsection (1) is a strict liability
offence.
(3) For subsection (1), building work is taken not to result in a building
that complies with the building code if, for each provision of the building code
with which the building must comply—
(a) the building will not comply with the deemed-to-satisfy provision of
the building code; and
(b) the approved plans for the building work do not state an alternative
solution under the building code.
(4) It is a defence to a prosecution for an offence against subsection (1)
if the person proves that—
(a) the building work was carried out in accordance with approved plans;
and
(b) if the approved plans had been followed at the time of
approval—the resulting building would have complied with the building
code.
50 Notification
by certifier of contraventions of Act
(1) A certifier must, as soon as practicable, notify the construction
occupations registrar of any contravention of this Act that comes to the
certifier’s attention.
Maximum penalty: 5 penalty units.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and the
building code (see Legislation Act, s 104).
(2) However, subsection (1) does not apply to building work only because
the work does not comply with section 42 (Requirements for carrying out
building work) if the building licensee in charge of the building work fixes the
matter to the satisfaction of the certifier within a reasonable time after the
day the matter is brought to the licensee’s notice.
Example of non-application of s
(2)
It comes to a certifier’s attention that a builder proceeded with
building work above the dampcourse level without a plan or document mentioned in
s 43 (2). That contravention of this Act must be reported under s (1) and s (2)
does not have an affect because the contravention relates to s 43, not s
42.
Note 1 The certifier has the evidentiary burden of establishing the
matters mentioned in s (2) (see Criminal Code, s 58).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) Subsection (1) applies whether or not a direction under
section 44 (2) (Stage inspections) has been given in relation to the
matter.
(4) An offence against this section is a strict liability
offence.
51 Carrying
out building work in contravention of s 42
(1) Building work must not be begun or carried out except in compliance
with section 42 (Requirements for carrying out building work).
(2) A person commits an offence if—
(a) building work is begun or carried out on a parcel of land in
contravention of subsection (1); and
(b) the person is the owner of the parcel of land or the person who
carries out the building work.
Maximum penalty: 50 penalty units.
(3) An offence against subsection (2) is a strict liability
offence.
(4) It is a defence to a prosecution against the owner of the parcel of
land for an offence against subsection (2) if the owner satisfies the court that
the owner—
(a) believed on reasonable grounds that section 42 had been complied with;
or
(b) was not aware, and could not reasonably have been aware, that the
building work had begun or been carried out.
(5) It is a defence to a prosecution against a person other than the owner
of the parcel of land if the person satisfies the court that—
(a) the person carried out the building work under a contract entered into
by the person with someone else or at the request and on the instructions of
someone else; and
(b) that the person believed on reasonable grounds that—
(i) a building approval had been issued for the building work;
and
(ii) the work had been carried out in compliance with
section 42.
Part
4 Stop and demolition
notices
52 Meaning
of easement for pt 4
In this part:
easement includes an area of land identified as an easement
for electricity, telecommunication, water, drainage and sewerage services in, on
or over the land on—
(a) a certificate of title; or
(b) a deposited plan under the Districts Act 2002.
(1) This section applies if building work is being, or is to be, carried
out—
(a) without a building approval having been issued for the work;
or
(b) otherwise than in accordance with the approved plans for the building
work; or
(c) contrary to a provision of this Act relating to the building work;
or
(d) if the building work is being carried out on a parcel of land held
under lease from the Commonwealth—contrary to a provision, covenant or
condition of the lease; or
(e) for building work forming part of a development requiring approval
under the Land Act, division 6.2—without the approval; or
(f) for building work forming part of a development approved under the
Land Act, division 6.2—contrary to the approval, or a condition of the
approval; or
(g) for building work for an exempt building—so that the building,
or part of the building, is or will be on an easement.
Examples of building
work
1 The footings of a building have been poured and are setting. The
footings are on an easement. A stop notice can be issued for the building work
continuing on top of the footings.
2 A concrete truck is about to deliver concrete to a building site for
which there needs to be an approved plan, although there is no plan. A stop
notice can be issued for the building work to be done.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The construction occupations registrar, a building inspector or a
certifier may, by written notice (a stop notice), prohibit the
carrying out of any further building work or of stated building work.
(3) A stop notice ends if—
(a) the person who gave the stop notice cancels the stop notice in writing
signed by the person; or
(b) the grounds for giving the stop notice no longer exist; or
(c) the stop notice is cancelled under section 55 (Application by land
owner for cancellation of stop notice) or section 57 (Decision on application by
other than land owner).
Examples for par (b)
1 if the ground for issue of the notice was s (1) (a)—an approval has
been issued for the work
2 if the ground for issue of the notice was s (1) (b)—the building
work that was not in accordance with the approval has been removed so that the
remaining work complies with the existing building approval or a new approval
has been obtained that allows the building work
3 if the ground for issue of the notice was s (1) (c)—if the grounds
of the contravention were that the building work was being carried out by a
person without a builders licence, an appropriately licensed builder continues
the building work
4 if the ground for issue of the notice was s (1) (d)—the building
work that was not in accordance with the lease is removed or the lease varied to
allow the work
5 if the ground for issue of the notice was s (1) (e)—the approval is
obtained
6 if the ground for issue of the notice was s (1) (f)—the building
work that was not in accordance with the approval is removed or the approval
varied to allow the work
7 if the ground for issue of the notice was s (1) (g)—the building
work that was on the easement is removed or the easement is changed to allow the
work
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) A stop notice may not be issued on a ground mentioned in subsection
(1) (a) or (b) for work in relation to an exempt building.
54 Building
work allowed under stop notice
(1) This section applies if a stop notice has been issued in relation to
building work.
(2) The stop notice does not prevent building work that does not, or would
not, contravene this Act apart from the stop notice if—
(a) the only purpose of the work (rectification work) is to
fix or reverse the building work that caused the stop notice to be issued;
or
(b) the work is necessary to ensure rectification work is carried out
safely.
Examples
1 A stop notice is issued in relation to an extension on a house, which
does not comply with the building code. The extension may be pulled down, but
the rest of the house may not.
2 A garage has been built partly on an easement. If it is decided to make
the garage smaller so it is not on the easement, the building of temporary
supports necessary to support the roof and ensure the safety of the rest of the
garage while the garage is made smaller is building work allowed to be done
despite the stop notice.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
55 Application
by land owner for cancellation of stop notice
(1) This section applies if a stop notice has been given in relation to
building work on a parcel of land, regardless of who gave the notice.
(2) The owner of the parcel of land may apply in writing to the
construction occupations registrar for cancellation of the stop notice, giving
reasons why the notice should be cancelled.
Note The ordinary rules of agency apply in relation to an
application under this section.
(3) Before making a decision on the application, the construction
occupations registrar must consider—
(a) the application; and
(b) the reasons why the stop notice was given; and
(c) the current state of the building work to which the notice
relates.
(4) The construction occupations registrar may cancel the stop notice if
satisfied that the cancellation will not endanger the public or people who will
use the building on which the building work is being, or is to be, done or
affect public confidence about the standard of building work in the
ACT.
56 Application
other than by land owner for cancellation of stop notice
(1) This section applies if a stop notice has been given in relation to
building work on a parcel of land, regardless of who gave the notice.
(2) A person other than the owner of the parcel of land may apply in
writing to the construction occupations registrar for cancellation of the stop
notice, giving reasons why the notice should be cancelled.
(3) On receiving an application, the construction occupations registrar
must—
(a) give the owner of the parcel of land a copy of the application;
and
(b) tell the owner in writing that the owner may, within 2 weeks after the
day the owner is given the copy of the application—
(i) make written comments on the merits of the application; or
(ii) tell the registrar in writing that the owner does not object to
cancellation of the stop notice.
57 Decision
on application by other than land owner
(1) This section applies if—
(a) a person has made an application under section 56 in relation to a
stop notice; and
(b) the construction occupations registrar has given the owner of the
parcel of land to which the stop notice relates a copy of the application and
the information required under section 56 (3) (b); and
(c) either—
(i) the owner has told the registrar in writing that the owner does not
object to cancellation of the stop notice; or
(ii) the 2-week period for making written comments on the merits of the
application has ended.
(2) Before making a decision on the application, the construction
occupations registrar must consider—
(a) the application; and
(b) the reasons why the stop notice was given; and
(c) any written comments from the owner given to the registrar within the
2-week period; and
(d) the current state of the building work to which the notice
relates.
(3) The construction occupations registrar may cancel the stop notice if
satisfied that the cancellation will not endanger the public or people who will
use the building on which the building work is being, or is to be, done or
affect public confidence about the standard of building work in the
ACT.
58 Further
notices relating to stop notices
(1) This section applies if a stop notice has been given on a ground other
than a ground mentioned in section 53 (1) (a) (which is about building work for
which there is no approval).
(2) Within 7 days after the day the stop notice is given, the construction
occupations registrar may, by a further written notice, state the building work
(including demolition) that is required to be carried out to ensure that the
building work for which the building approval was issued will be carried out in
accordance with the approved plans and the provisions of this Act.
(3) The further notice must state the period within which the building
work stated in the notice must be carried out.
(4) However, if the ground for the stop notice is mentioned in
section 53 (1) (f) (which is about building work that does not comply with
an approval), the construction occupations registrar may give a notice under
this section to carry out the demolition of a building only if the planning and
land authority recommends giving the notice.
(5) Any building work done by a person to comply with a notice under this
section is taken not to contravene the stop notice.
(6) A notice issued under this section ends if the ground for the issue of
the stop notice to which it relates no longer exists.
59 Service
of stop notices and further notices
A notice under section 53 or section 58 may be given to—
(a) the owner of the parcel of land where the building work mentioned in
the notice is being, or is to be, carried out; or
(b) the person by whom the building work mentioned in the notice is being,
or is to be, carried out; or
(c) for a stop notice—on any person carrying out building work
mentioned in the notice; or
(d) any 2 or more of the people, jointly, to whom the notice may be given
under paragraph (a), (b) or (c).
Note See s 143 for service of notices.
60 Notice
to produce survey plan etc
(1) This section applies if building work for which a building approval
has been issued has been carried out in contravention of
section 43 (2) (Stages of building work).
(2) The construction occupations registrar may give the owner of the
parcel of land where the building work was carried out, or the person by whom
the building work was carried out, a notice requiring the person to give to the
registrar the plan or document mentioned in section 43 (2) (a).
(3) The notice under subsection (2) must state the period (at least 7 days
after the day the notice is given to the person) within which the person must
comply with the notice.
61 Preconditions
for s 62 notice
Each of the following is a precondition for the giving of a notice under
section 62 (Notice to carry out building work):
(a) building work has been carried out without a building approval
required for the work;
(b) building work for which a building approval has been given has been
carried out in contravention of section 42 (Requirements for carrying out
building work), or otherwise than in accordance with section 43 (Stages of
building work);
(c) building work, in relation to which a notice has been served under
this part, has been carried out otherwise than in accordance with the
notice;
(d) building work has been carried out on a parcel of land held under
lease from the Commonwealth, contrary to a provision, covenant or condition of
the lease;
(e) building work forming part of a development requiring approval under
the Land Act, division 6.2 has been carried out without the approval;
(f) building work forming part of a development approved under the Land
Act, division 6.2 has been carried out contrary to the approval, or a condition
of the approval;
(g) building work in relation to an exempt building work has been carried
out so that the building or part of the building is, or will, be on an
easement;
(h) the construction occupations registrar finds, on inspection,
that—
(i) for a building if plans or plans and specifications in relation to its
erection or alteration have been approved under this Act—the completed
building has deteriorated, or is likely to deteriorate, so that the building is,
or is likely to become, unfit for use as a building of the class stated, or for
the purpose stated in the plans or plans and specifications approved for the
most recent building work carried out in relation to the building; or
(ii) for a building other than a building of a kind mentioned in
subparagraph (i)—the completed building has deteriorated, or is
deteriorating, so that the building is, or is likely to be, unfit for any kind
of use; or
(iii) building work has not been completed when the building approval for
the building work ended; or
(iv) a building or part of a building is not structurally sound;
or
(v) the maximum safe live load, or the load that a building was designed
to carry, has been exceeded; or
(vi) injury to people or damage to property may result from a part of a
building becoming detached because of the external condition of the building;
or
(vii) a building or part of a building is unsafe because of fire hazard or
unfit for use because of a danger to health.
62 Notice
to carry out building work
(1) If a precondition under section 61 exists in relation to building work
on a parcel of land, the construction occupations registrar may give the owner
of the parcel a notice directing the owner to carry out stated building work
(including demolition) on the parcel within a stated period and may, in the
notice, direct the owner to submit plans for approval and obtain the issue of a
building approval and commencement notice.
(2) If building work has been carried out in the circumstances mentioned
in section 61 (a), a notice given by the construction occupations registrar
under subsection (1) is taken to have been revoked if a certifier, on
application by or on behalf of the owner of the parcel of land made under this
Act within 2 weeks after the day the notice is given, issues a building approval
for the building work.
(3) If building work has been carried out in the circumstances mentioned
in section 61 (f), the construction occupations registrar may give a notice
under this section to carry out the demolition of a building only if the
planning and land authority recommends the demolition.
(4) A notice given to the owner of a parcel of land by the construction
occupations registrar under subsection (1) directing the person to carry out
building work may state reasonable safety precautions to be taken in carrying
out the building work.
(5) If the owner of a parcel of land does not hold a builders licence that
authorises the doing of building work required to be done by a notice under this
section, and the building work is required to be done by a building licensee,
the owner must appoint someone to do the work who has a builders licence that
authorises the work.
(6) This section does not allow the construction occupations registrar to
require a person doing building work in relation to an exempt building to obtain
an approval for the building work.
63 Payment
of fees otherwise payable
(1) This section applies if the owner of a parcel of land—
(a) is directed by a notice under section 62 (1) to carry out building
work (other than demolition); and
(b) the notice contains no requirements about the approval of plans or the
obtaining of a building approval.
(2) The owner of the parcel of land must give the construction occupations
registrar the fees that would have been payable to the registrar if the owner
had been required to submit plans for approval and that would have been payable
to the registrar by the certifier for a building approval in relation to that
building work.
64 Compliance
with notices under pt 4
(1) A person commits an offence if—
(a) the person is given a notice under this part; and
(b) the person contravenes the notice.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability
offence.
(3) It is a defence to a prosecution for an offence against subsection (1)
if the defendant establishes that the defendant paid a reasonable amount to have
the work done by someone else who was licensed to do the work.
Part
5 Building
occupancy
Division
5.1 Certificates of occupancy and
other certificates
65 Building
work to which pt 5 does not apply
This part does not apply to building work in relation to an exempt
building.
66 Meaning
of prescribed requirements for div 5.1
In this division:
prescribed requirements, in relation to building work,
means—
(a) the requirements of this Act; or
(b) the approved plans for the work.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and the
building code (see Legislation Act, s 104).
67 Registrar
may have regard to documents given
In working out whether building work has been completed in accordance with
the prescribed requirements, the construction occupations registrar may have
regard to certificates and other documents given to the registrar by a certifier
under section 48.
68 Effect
of certificates under div 5.1
The giving of a certificate under this division in relation to a building
or part of a building does not affect the liability of anyone to comply with the
provisions of a Territory law (including this Act) relating to the building or
part of the building.
69 Certificates
of occupancy
(1) If building work involving the erection or alteration of a building
has been completed in accordance with the prescribed requirements for the
building work, the construction occupations registrar must, on application by
the owner of the parcel of land where the building work was carried out, issue a
certificate that the building work has been completed in accordance with the
requirements and that the building as erected or as altered is fit for
occupation and use as a building of the class stated in the approved plans for
that building work.
(2) If building work involving the erection or alteration of a building as
completed is not strictly in accordance with the prescribed requirements for the
building work but is substantially in accordance with the requirements, the
construction occupations registrar may, on application made by the owner of the
parcel of land where the building work has been carried out, issue a certificate
that the building as erected or as altered is fit for occupation and use as a
building of the class stated in the approved plans for that building
work.
(3) If part of a building has been erected in accordance with the
prescribed requirements so far as they relate to the part of the building, the
construction occupations registrar may, on an application made by the owner of a
parcel of land where the building is being erected, issue a certificate that the
part of the building is fit for occupation and use as a part of a building of
the class stated in the approved plans in relation to the building
work.
(4) For this section—
(a) a certificate under the Water and Sewerage Act 2000 that the
plumbing, sewerage and drainage work carried out in building work complies with
the prescribed requirements for the building work relating to plumbing, sewerage
and drainage work is evidence of the fact; and
(b) a certificate signed by an inspector under the Electricity Safety
Act 1971 certifying that the electrical wiring work, as defined by the
Electricity Safety Act 1971, carried out in the building work complies
with the prescribed requirements for the building work relating to the
electrical wiring work is evidence of the fact.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
70 Cancellation
of part certificate of occupancy
(1) This section applies if—
(a) a certificate of occupancy has been issued under section 69 (3) for a
part of a building; and
(b) the construction occupations registrar, on completion of the whole of
the building work, issues a certificate of occupancy for the whole of the
building.
(2) The construction occupations registrar must cancel the certificate of
occupancy that relates to the part of the building.
71 Certificate
for building work involving demolition
(1) This section applies if building work involving the demolition of a
building has been completed in accordance with the prescribed requirements for
the building work.
(2) The construction occupations registrar must, on application made by
the owner of the parcel of land where the building work was carried out, issue a
certificate to the effect that the building work was carried out in accordance
with the prescribed requirements for the work.
72 Certificate
for building work involving erection of structure
(1) This section applies if building work involving the erection of a
structure on or attached to land or a building has been completed in accordance
with the prescribed requirements for the building work.
(2) The construction occupations registrar must, on application made by
the owner of the parcel of land where the building work was carried out, issue a
certificate to the effect that the building work was carried out in accordance
with the prescribed requirements for the work.
73 Certificates
of occupancy and use for owner-builders
If the construction occupations registrar issues a certificate for building
work carried out by a person who holds an owner-builders licence, the
certificate must include a statement to the effect that part 6 (Residential
building—statutory warranties, insurance and fidelity certificates) may
not apply to the building work.
74 Government
buildings—application for fitness certificate
(1) This section applies to a building if—
(a) the building was erected on land that, when the building was erected,
was held—
(i) by the Commonwealth; or
(ii) by the Territory; or
(iii) by someone else under a lease from the Commonwealth; and
(b) a certificate of occupancy or regularisation has not been issued for
the building.
(2) Application for a certificate that the building is fit for occupation
may be made by a person eligible to make the application under subsection (3) or
(4).
(3) If, when the application is made, the building is on land held under a
lease from the Commonwealth, the application may be made by the
lessee.
(4) If, when the application is made, the building is not on land held
under a lease from the Commonwealth, the application may be made
by—
(a) if the land is held by a person, including the Territory, under a
tenancy from the Commonwealth, whether or not the occupier is the tenant or a
subtenant—the Commonwealth or the tenant; or
(b) if the land is held under a tenancy from the Territory, whether or not
the occupier is the tenant or a subtenant—the tenant; or
(c) for national land—the Commonwealth; or
(d) for Territory land—the Territory.
(5) The application must—
(a) be in writing signed by or on behalf of the applicant; and
(b) provide sufficient information to allow the building to be identified;
and
(c) be accompanied by a copy of the plans and specifications relating
to—
(i) the erection of the building and any alteration to it; or
(ii) the building when the application is made; and
(d) state the purpose for which the building or each part of the building
is being used; and
(e) if it is intended that any part of the building be used for a purpose
other than the purpose for which it is being used when the application is
made—state the intended purpose.
Note A fee may be determined under s
149 for this section.
75 Decision
on s 74 application
(1) On receiving an application under section 74, the construction
occupations registrar must—
(a) if satisfied that the building complies with subsection
(2)—issue a certificate (certificate of regularisation) that
the building is fit for occupation if each part of it is used only for the
purpose stated in the certificate; or
(b) in any other case—refuse to issue the certificate.
(2) The building complies with this subsection if—
(a) it is structurally sound and can withstand the loadings likely to
arise from its expected use; and
(b) contains reasonable provision for—
(i) the safety of people likely to be in the building if there is a fire,
including the provision of adequate facilities for leaving the building;
and
(ii) the prevention and suppression of fire; and
(iii) the prevention of the spread of fire.
(3) To decide whether the building complies with subsection (2), the
construction occupations registrar—
(a) may require the applicant to provide a written statement by a
qualified licensed construction practitioner that deals with the matters
mentioned in subsection (2) (a) and (b), or such of the matters as the registrar
states; and
(b) may consider the statement.
(4) In this section:
qualified licensed construction practitioner means a person
who—
(a) is licenced under the Construction Occupations (Licensing) Act
2003; and
(b) in the construction occupations registrar’s opinion, has
sufficient expertise to provide a statement under subsection (3) that would help
the registrar to decide whether the building complies with subsection
(2).
76 Occupation
and use of buildings
(1) A person commits an offence if—
(a) the person occupies or uses, or allows someone else to occupy or use,
a building or part of a building; and
(b) the construction occupations registrar has not issued a certificate of
occupancy for the building or part of the building.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if—
(a) the construction occupations registrar has issued a certificate of
occupancy for only a part of a building (the approved part);
and
(b) the person occupies or uses, or allows someone else to occupy or use,
a part of the building for which no certificate of occupancy has been issued;
and
(c) the purpose of the use is not incidental to the use of the approved
part.
Maximum penalty: 50 penalty units.
(3) An offence under this section is a strict liability offence.
(4) In this section:
building does not include a building for which a certificate
of regularisation has been issued.
77 Use
of buildings restricted
(1) A person commits an offence if—
(a) the person occupies or uses, or allows someone else to occupy or use,
a building or part of a building—
(i) for a building in relation to the erection or alteration of which
plans have been approved under this Act—as a building or part of a
building of a class other than the class stated in the plans approved in
relation to the most recent building work that has been carried out in relation
to the building; or
(ii) for a building in relation to the erection or alteration of which
plans have been approved only under the repealed laws—for a purpose other
than that stated in the plans and specifications approved in relation to the
most recent building work that has been carried out in relation to the building;
and
(b) the construction occupations registrar has not given written approval
for the occupation and use.
Maximum penalty: 50 penalty units.
(2) An offence against subsection (1) is a strict liability
offence.
(3) The construction occupations registrar must, on written application,
give his or her written approval for the occupation and use of a building or
part of a building as a building or a part of a building of a class stated in
the application if the construction occupations registrar is satisfied that a
reasonable certifier would, under this Act, approve the plans for the erection
of the building or part if—
(a) the building or part had not been erected and the certifier were then
and there considering the plans; and
(b) the plans required the building or part to be of the same class as
that stated in the application.
(4) If a parcel of land is held under a lease from the Commonwealth, an
approval given by the construction occupations registrar under subsection (3) in
relation to the parcel of land does not authorise—
(a) the use of the parcel for a purpose other than the purpose for which
the lease was granted; or
(b) the use of the parcel of land contrary to a provision, covenant or
condition of the lease.
(5) In this section:
building does not include a building for which a certificate
of regularisation has been issued.
78 Occupation
and use of ex-government buildings
(1) This section applies to a building for which a certificate of
regularisation has been issued that is—
(a) on land held under a lease or tenancy from the Commonwealth by a
person other than the Territory; or
(b) on land held under a sublease or tenancy from the Territory.
(2) A person must not occupy or use, or allow anyone else to occupy or
use, the building, or a part of the building, for a purpose other than the
purpose stated in the certificate of regularisation.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability
offence.
79 Action
by registrar on unauthorised use of premises
(1) In this section:
building occupancy offence section means any of the following
sections:
• section 76 (Occupation and use of buildings);
• section 77 (Use of restricted buildings);
• section 78 (Occupation and use of ex-government
buildings).
(2) This section applies if, after being convicted for an offence against
a building occupancy offence section, a person continues to use or continues to
allow someone else to use a building or a part of a building in contravention of
the section for an offence against which the person has been
convicted.
(3) The construction occupations registrar may, by written notice to the
occupier or to the person allowing the occupation (or both)—
(a) for a conviction for an offence against section 76—require the
building to be vacated within the period stated in the notice; or
(b) for a conviction for an offence against section 77 or
section 78—require the occupation or use of the building or the part
of the building in contravention of that section to stop within the period
stated in the notice.
(4) A person to whom a notice under subsection (3) is given must not fail
to comply with the notice.
(5) A person who contravenes subsection (4) commits an offence, in
relation to each day the person contravenes the subsection (including any day
when the person is convicted of an offence).
Maximum penalty: 50 penalty units.
(6) An offence against subsection (5) is a strict liability
offence.
80 Copies
of certificates of occupancy and regularisation
(1) A copy of each certificate issued under this part must be kept in the
construction occupations registrar’s office.
(2) Anyone may inspect a certificate at the construction occupations
registrar’s office during the hours the office is open for
business.
(3) If the construction occupations registrar issues a certificate under
section 69 (1) or (3) (Certificates of occupancy) for a building
or part of a building and a copy of a certificate of occupancy for the building
or part of a building is already being kept in the registrar’s office, the
registrar must replace the earlier certificate with a copy of the later
certificate.
(1) If a certificate is issued under this part on the completion of a
class 5, class 6, class 7, class 8 or class 9 building or on the completion
of the alteration of such a building, the owner of the building must attach, in
a conspicuous place on the walls of each storey of the building, in a way
approved in writing by the construction occupations registrar, the number of
metal plates of a size and form approved in writing by the registrar showing the
maximum live load for which the floor on that storey has been
designed.
Maximum penalty: 5 penalty units.
(2) An approval under subsection (1) is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(3) The owner of a building commits an offence if—
(a) the building is altered; and
(b) a later certificate is issued under this part for the altered
building; and
(c) when the certificate is issued, the safe live load for a floor of the
altered building is different from that shown for that floor on the metal plates
attached to the walls of the floor under subsection (1); and
(d) the owner does not substitute other plates showing the current maximum
safe live load for the floor.
Maximum penalty: 5 penalty units.
(4) The owner of the building must maintain each plate attached under this
section.
Maximum penalty: 5 penalty units.
(5) A person must not occupy a building or part of a building in relation
to which plates are required to be attached or substituted under this section
before they have been so attached or substituted.
Maximum penalty: 5 penalty units.
(6) An offence against this section is a strict liability
offence.
82 Exceeding
safe live load
(1) The owner and occupier of a building in relation to a floor of which a
metal plate mentioned in section 81 shows a maximum live load must each ensure
that the maximum live load shown on the metal plate is not exceeded on that
floor.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability
offence.
Part
6 Residential
buildings—statutory warranties, insurance and fidelity
certificates
Division
6.1 Application and interpretation of
pt 6
83 Building
work to which pt 6 does not apply
This part does not apply to—
(a) building work in relation to an exempt building; or
(b) building work exempted under the regulations.
In this part:
actuary, for an approved scheme, does not include a special
actuary.
approval criteria means the requirements determined under
section 99 (Approval criteria for schemes).
approved scheme means a fidelity fund scheme approved under
section 96.
builder, in relation to residential building work or a
residential building, means the person stated to be the builder in the
commencement notice for the building work or building.
building does not include paving or a structure that is a
fence, retaining wall, outdoor swimming pool, outdoor ornamental pond, mast,
antenna, aerial, advertising device, notice or sign.
building work does not include work in relation to the
demolition of a whole building.
complying residential building work insurance means an
insurance policy issued in relation to residential building work that complies
with section 90.
cost, of building work, means the cost of the work as worked
out under section 86.
fidelity certificate, for building work, means a certificate
issued for the building work by the trustees of an approved scheme.
fidelity fund scheme means a scheme for a building industry
fidelity fund established under a trust deed.
prudential standards means the standards determined under
section 103.
residential building means a building intended mainly for
private residential use, or a part of such a building, if—
(a) the building has no more than 3 storeys at any point, excluding any
storey used exclusively for parking; or
(b) for a part of a building—the part provides structural support,
or is a structurally integral adjunct, to the building.
Examples
1 A building has shops on its ground storey, a hotel on its 2nd storey and
private residential units on its 3rd storey. It is not a residential building
because it is not used mainly for private residential use.
2 A building has 2 wings, which are structurally independent of each other.
The north wing has 3 storeys including the ground storey. The south wing has 6
storeys including the ground storey. All storeys contain residential units. The
north wing is a residential building. The south wing is not a residential
building because it is 6 storeys.
3 A building has 2 wings that are dependent on each other for structural
support. The north wing has 3 storeys including the ground storey. All storeys
contain residential units. The lower 3 storeys of the south wing are
structurally integrated with the north wing. A structural instability in any of
the lower 3 storeys in the south wing could compromise the structural integrity
of both wings of the building. The south wing storeys that are higher than the
north wing are structurally independent of the north wing. The north wing of the
building is a residential building. The lower 3 storeys of the south wing are a
residential building to the extent that they are a structurally integral adjunct
to the building as a whole. The upper 3 storeys of the south wing are not a
residential building because they are over 3 storeys and not a structurally
integral adjunct to the building.
4 A 4-storey residence has a parking garage as its ground storey. A
structural instability in the garage could compromise the building’s
structural integrity. The garage is a residential building because it is a
structurally integral adjunct to the building and the building is a residential
building.
5 A single storey residence has a garage attached at the side. The roof
trusses of the building span across the residence and garage in a single span.
A structural instability in the garage could compromise the structural
integrity of the roof trusses and, because of that, compromise the structural
integrity of the building. The garage is a residential building because it is a
structurally integral adjunct to the building and the building is a residential
building.
6 A single storey residence has a garage attached at the side and under the
same roofline as the residence. The garage is mainly used for cars and is not
for residential use. No structural elements of the residence depend on the
garage for structural integrity. A structural instability in the garage could
not compromise the structural integrity of the residence. The garage is not a
residential building because it is not a structurally integral adjunct to a
building intended primarily for residential use. The residence, apart from the
garage, is a residential building.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
residential building work means building work in relation to
a residential building.
special actuary—see section 122 (Special actuary to
investigate liabilities).
storey does not include a storey below the ground
storey.
85 Meaning
of completion day for pt 6
(1) In this part:
completion day, for residential building work,
means the day the work is completed or the day the contract relating to the work
ends, whichever is the later.
(2) Without limiting subsection (1), the work is taken to have been
completed no later than the day a certificate of occupancy (if any) is issued
for the work.
86 Cost
of building work for pt 6
(1) For this part, the cost of building work
is—
(a) if a contract has been entered into for carrying out of the building
work—the cost of the work as fixed by the contract; or
(b) in any other case—
(i) an amount agreed between the construction occupations registrar and
the builder; or
(ii) if an amount is not agreed—an amount worked out by the
registrar.
(2) For subsection (1), the cost of building
work—
(a) includes the cost of any engineering service in relation to the land
where the building work is to be carried out; but
(b) does not include the cost of the land where the building work is to be
carried out.
Division
6.2 Statutory
warranties
87 Residential
building work to which pt 6 does not apply
(1) This part does not apply in relation to residential building
work—
(a) carried out or to be carried out by or for the Territory or the
Commonwealth, a Territory authority or an authority established under a
Commonwealth Act; or
(b) in relation to which an owner-builders licence has been granted;
or
(c) if the cost of the work is less than the amount prescribed under the
regulations; or
(d) in relation to a building or dwelling other than a class 1 or
class 2 building.
(2) Subsection (1) (d) does not prevent this part from applying in
relation to residential building work carried out in relation to a garage that
provides structural support for, or is a structurally integral adjunct to, a
class 1 or class 2 building.
(1) By force of this section, every contract for the sale of a residential
building, and every contract to carry out residential building work to which the
builder is a party, is taken to contain a warranty under this section.
(2) The builder warrants the following:
(a) that the residential building work has been or will be carried out in
accordance with this Act;
(b) that the work has been or will be carried out in a proper and skilful
way and in accordance with the plans approved for the work by the construction
occupations registrar;
(c) that good and proper materials for the work have been or will be used
in carrying out the work;
(d) if the work has not been completed, and the contract does not state a
date by which, or a period within which, the work is to be completed—that
the work will be carried out with reasonable promptness;
(e) if the owner of the land where the work is being or is to be carried
out is not the builder, and the owner expressly makes known to the builder, or
an employee or agent of the builder, the particular purpose for which the work
is required, or the result that the owner desires to be achieved by the work, so
as to show that the owner is relying on the builder’s skill and
judgment—that the work and any material used in carrying out the work is
or will be reasonably fit for the purpose or of such a nature and quality that
they might reasonably be expected to achieve the result.
(3) Each of the owner’s successors in title succeeds to the rights
of the owner in relation to the statutory warranties.
(4) The warranties end at the end of the period prescribed under the
regulations after the completion day for the work.
(5) In subsection (2):
owner means—
(a) for a contract mentioned in subsection (1) for the sale of a
residential building—the person to whom title in the land where the
building was built is transferred under the contract; or
(b) for a contract mentioned in subsection (1) to carry out residential
building work—the owner of the land where the work is to be carried out
under the contract.
This Act does not limit the liability a builder would have to anyone apart
from this Act.
Division
6.3 Residential building
insurance
90 Complying
residential building work insurance
(1) An insurance policy issued for residential building work complies with
this section if—
(a) it is issued by an authorised insurer; and
(b) it provides for a total amount of insurance cover of at least the
amount prescribed under the regulations, or the cost of the work, whichever is
less, for each dwelling that forms part of the work; and
(c) if the builder is not the owner of the land where the work is to be
carried out—it insures the owner and the owner’s successors in title
for the period beginning on the day the certifier for the work issues a building
commencement notice under section 37 for the work and ending at the end of the
period prescribed under the regulations after the day a certificate of occupancy
is issued for the work; and
(d) if the builder is the owner of the land where the work is to be
carried out—it insures the builder’s successors in title for the
period beginning on the day the title in the land is transferred to someone else
and ending at the end of the period prescribed under the regulations after the
day a certificate of occupancy is issued for the work; and
(e) the whole of the premium payable for the period has been paid;
and
(f) it insures the owner (if the builder is not the owner) and the
owner’s successors in title against the risk of being unable to enforce or
recover under the contract under which the work has been, is being or is to be
carried out because of the insolvency, disappearance or death of the builder;
and
(g) it insures the owner (if the builder is not the owner) and the
owner’s successors in title against the risk of loss resulting from a
breach of a statutory warranty; and
(h) it insures the owner (if the owner is not the builder) and the
owner’s successors in title against the risk of loss resulting, because of
the builder’s negligence, from subsidence of the land; and
(i) it provides that a claim under it may only be made within the period
prescribed under the regulations, or a stated longer period after the claimant
becomes aware of the existence of grounds for the claim; and
(j) the form of the policy has been approved in writing by the
construction occupations registrar.
(2) However, if the owner is a developer, the insurance is taken to comply
with subsection (1) (c), (f), (g) or (h) if it insures the owner’s
successors in title, even though it does not insure the owner.
(3) To remove any doubt, an insurance policy issued in relation to
residential building work may exclude claims other than those in circumstances
in which the builder is insolvent, dead or has disappeared.
(4) In this section:
developer, for residential building work, means a person for
whom the work is done in a building or residential development where 4 or more
of the existing or proposed dwellings are or will be owned by the
person.
91 Provisions
of residential building insurance policies
(1) A complying residential building insurance policy may provide that the
authorised insurer who issues the policy is not liable for the amount prescribed
under the regulations, or the stated lesser amount, of each claim.
(2) In calculating the amount of the premium payable in relation to a
complying residential building insurance policy, the value of the work is taken
to be equal to the cost of the work.
(3) A provision, stipulation, covenant or agreement that negatives, limits
or modifies or purports to negative, limit or modify the operation of this part
is void.
(4) A complying residential building insurance policy—
(a) is not be taken to be invalid only because it contains a term,
condition or warranty not contained in the form of policy approved by the
construction occupations registrar; but
(b) a term, condition or warranty mentioned in paragraph (a) is
void.
92 Builder’s
misrepresentation etc does not prevent liability
An authorised insurer is not entitled to avoid liability under a complying
residential building insurance policy only because the policy was obtained by
misrepresentation or nondisclosure by the builder.
93 Claims
if builder insolvent and work unfinished
(1) This section applies if—
(a) a builder is not the owner of the land where the builder is carrying
out residential building work; and
(b) the builder fails to complete the work because the builder becomes
insolvent; and
(c) the owner has paid the builder part or all of the cost of the work;
and
(d) the work is insured under a complying residential building insurance
policy.
(2) The owner is not entitled to recover from the insurer any amount by
which the amount paid exceeds the cost of the work done.
(3) However, if the owner has paid a deposit on the work and the cost of
any work done is less than the amount of the deposit, the owner may recover from
the insurer the lesser of the following amounts:
(a) the amount of the deposit less the cost of any work done;
(b) the amount prescribed under the regulations less the cost of any work
done.
(4) For this section, a builder is taken to be insolvent if the builder
becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or makes an
assignment of his or her remuneration for their benefit.
(5) In subsection (3):
deposit, in relation to residential building work, means an
amount that was paid or payable by the owner to the builder, under the contract
to carry out the work, before the beginning of the work.
(1) This section applies if—
(a) a court gives judgment in favour of a person in relation to a matter
for which the person is insured under a complying residential building insurance
policy; and
(b) the insurer is a party to the proceeding in which the judgment is
given; and
(c) the judgment is not satisfied in full within 30 days after the day
judgment is entered.
(2) The judgment creditor may apply to the court for a direction that
judgment be entered in favour of the creditor against the authorised insurer who
issued the policy.
(3) The judgment creditor must give the insurer at least 7 days written
notice of his or her intention to make an application.
(4) A judgment entered against an authorised insurer is enforceable only
to the extent that it had not been satisfied at the time the judgment was
entered.
(5) An authorised insurer may, in addition to any other right or remedy,
recover from a builder in relation to whose work a complying residential
building insurance policy was issued so much of the following as the insurer has
paid under or because of the policy:
(a) any judgment entered or obtained against the insurer; and
(b) any amounts paid by the insurer in payment, settlement or compromise
of a claim or judgment against the builder or of a judgment entered or obtained
against the insurer; and
(c) the costs of, and expenses reasonably incurred by, the
insurer.
(1) A person commits an offence if—
(a) the person has been an authorised insurer in the business of issuing
residential building insurance policies; and
(b) the person ceases to be in that business, or the person’s
authority to carry on insurance business is cancelled under the Insurance Act
1973 (Cwlth); and
(c) the person fails to notify the construction occupations registrar of
the cessation or cancellation within 7 days after the day of cessation or
cancellation.
Maximum penalty: 50 penalty units.
(2) An offence under subsection (1) is a strict liability
offence.
(3) An authorised insurer must not represent that an insurance policy
issued or to be issued by the insurer is complying residential building work
insurance if the insurer knows that it is not.
Maximum penalty: 250 penalty units.
(4) On or before 31 July in each year, an authorised insurer must give a
written statement to the construction occupations registrar in relation to
claims on residential building insurance policies dealt with by the insurer in
the financial year ending on the previous 30 June, stating the
following:
(a) the number of claims;
(b) the amount of each claim;
(c) the number of claims that were paid;
(d) the amount paid on each claim;
(e) if a claim was rejected—the reason for its rejection.
Maximum penalty: 100 penalty units.
(5) An offence against subsection (4) is a strict liability
offence.
Division
6.4 Approved fidelity fund
schemes
96 Approval
of fidelity fund schemes
(1) The planning and land authority may, in writing, approve a fidelity
fund scheme.
(2) An application for approval of a fidelity fund scheme
must—
(a) be signed by all the trustees of the scheme; and
(b) be accompanied by—
(i) a copy of the trust deed certified in accordance with the approval
criteria; and
(ii) any other information prescribed under the approval
criteria.
(3) The planning and land authority may approve a fidelity fund scheme
only if the scheme complies with the approval criteria.
(4) An approval is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
97 Additional
information for approval of scheme etc
(1) This section applies if the trustees of a fidelity fund scheme apply
to the planning and land authority for approval of the scheme.
(2) The planning and land authority may, by written notice given to the
trustees, require the trustees to give the authority —
(a) stated additional information or documents that the authority
reasonably needs to decide the application; or
(b) a statutory declaration about a stated matter in relation to
information or documents provided in relation to the application.
(3) The planning and land authority need not consider the application
further until the trustees comply with the requirement.
98 Authority
may require changes to scheme
Before approving a fidelity fund scheme, the planning and land authority
may require changes to be made to the scheme to ensure that it complies with
this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and
disallowable instruments (see Legislation Act, s 104).
99 Approval
criteria for schemes
(1) The Minister may, in writing, determine requirements (the
approval criteria) for this Act with which a fidelity fund scheme
must comply to be an approved scheme.
(2) The approval criteria must include requirements in relation
to—
(a) the management of the fidelity fund scheme in accordance with the
trust deed; and
(b) qualifications or suitability for appointment as a trustee of the
scheme; and
(c) the powers and duties of the trustees; and
(d) the financial management of the scheme; and
(e) the building work for which a fidelity certificate may be issued, or
must not be issued, under the scheme; and
(f) the people who can and cannot make claims under a fidelity
certificate; and
(g) applications for claims under fidelity certificates issued under the
scheme; and
(h) dealing with claims under the scheme; and
(i) complying with the prudential standards.
(3) The approval criteria may apply, adopt or incorporate a law or
instrument, or a provision of a law or instrument, as in force from time to
time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(4) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
100 Approval
of scheme may be conditional
(1) The approval of a fidelity fund scheme may be given subject to
conditions.
(2) A condition may be expressed to have effect despite anything in the
prudential standards.
(3) The trustees of an approved scheme each commit an offence if the
trustees fail to ensure that the scheme complies with the conditions of the
scheme’s approval.
Maximum penalty: 60 penalty units.
(4) An offence against this section is a strict liability
offence.
101 Application
for changes to approved scheme
(1) The trustees of an approved scheme may apply in writing to the
planning and land authority to change the scheme.
(2) The application must—
(a) be signed by all the trustees of the scheme; and
(b) set out the proposed change to the scheme and the reasons for the
change.
(3) This section does not apply to a change to the scheme declared under
the prudential standards to be a change to which this section does not
apply.
102 Approval
of changes to approved scheme
(1) The planning and land authority may, in writing, approve or refuse to
approve a change to an approved scheme.
(2) The planning and land authority must refuse to approve a change to the
scheme if not satisfied that the scheme as proposed to be changed would continue
to meet the approval criteria and the prudential standards.
(3) This section does not apply to a change to the scheme declared under
the prudential standards to be a change to which this section does not
apply.
(4) An approval or refusal to approve is a notifiable
instrument.
Note A notifiable instrument must be notified under the
Legislation Act.
(1) The Minister may, in writing, determine standards (the
prudential standards) for this Act relating to prudential matters that
must be complied with by an approved scheme.
Note Power given under an Act to make a statutory instrument
includes power to make different provision for different categories, eg
different kinds of schemes (see Legislation Act, s 48).
(2) The prudential standards may—
(a) require approval of the trustees of the approved scheme; and
(b) make provision in relation to—
(i) the capital adequacy of the scheme; and
(ii) the valuation of liabilities; and
(iii) the effectiveness of risk management strategies and techniques;
and
(iv) requiring the giving of information to the commissioner for fair
trading, or any other entity prescribed under the prudential standards, about
decisions by the trustees to pay or refuse to pay claims.
Note An Act that authorises the making of a statutory instrument
(eg prudential standards) also authorises an instrument to be made with
respect to any matter required or permitted to be prescribed under the
authorising law or that is necessary or convenient to be prescribed for carrying
out or giving effect to the authorising law (see Legislation Act, s
44).
(3) The prudential standards may—
(a) provide for the exercise of discretions under the standards, including
discretions to approve, impose, adjust or exclude particular prudential
requirements in relation of an approved scheme; and
(b) apply, adopt or incorporate a law or instrument, or a provision of a
law or instrument, as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or
instrument, whether applied as in force from time to time or as at a particular
time, is taken to be a notifiable instrument if the operation of the Legislation
Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(4) A determination under this section is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(5) In this section:
prudential matters, for an approved scheme, means matters
relating to the conduct by the trustees of the scheme of any of the
scheme’s affairs—
(a) in a way that keeps the scheme’s affairs in a sound financial
position; and
(b) with integrity, prudence and professional skill.
104 Compliance
with prudential standards by trustees
(1) The trustees of an approved scheme each commit an offence if the
trustees fail to ensure that the scheme complies with the prudential
standards.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
105 Notice
to trustees to comply with prudential standards
(1) This section applies if the planning and land authority is satisfied
on reasonable grounds that an approved scheme—
(a) is contravening a provision of the prudential standards; or
(b) is likely to contravene a provision of the prudential standards in a
way that is likely to give rise to prudential risk.
(2) The planning and land authority may, by written notice given to the
trustees of the approved scheme, require the trustees to comply with a provision
of the prudential standards within a stated time.
(3) The trustees must comply with the notice despite anything in the trust
deed or in any contract or arrangement to which they are a party.
(4) The trustees of an approved scheme each commit an offence if the
trustees fail to comply with a notice given to the trustees under this
section.
Maximum penalty: 60 penalty units.
(5) An offence against this section is a strict liability
offence.
106 Notice
to trustees requiring information
(1) The planning and land authority may, by written notice given to the
trustees of an approved scheme, require the trustees to give the authority
stated information about anything relevant to the scheme’s ability to meet
its liabilities and potential liabilities at a particular date or time or at
particular intervals, including, for example, information about—
(a) the scheme’s liabilities and potential liabilities;
and
(b) contributions to the scheme; and
(c) administrative or other costs of the scheme; and
(d) claims received by the scheme.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The notice must state a reasonable period for complying with the
notice.
(3) Without limiting subsection (1) (d), the notice may require
information about—
(a) the number of claims received by the scheme; and
(b) the amount of each claim; and
(c) the number of claims that have been paid; and
(d) the amount paid on each claim; and
(e) if a claim was rejected—the reason for its rejection.
(4) The trustees of an approved scheme each commit an offence if the
trustees fail to comply with a notice given to the trustees under this
section.
Maximum penalty: 60 penalty units.
(5) An offence against this section is a strict liability
offence.
107 Suspension
or cancellation of approval of approved scheme
(1) The planning and land authority may take action under this section in
relation to an approved scheme on any of following grounds:
(a) the trustees of the scheme have contravened this Act or another
Territory law in relation to the scheme;
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and
disallowable instruments (see Legislation Act, s 104).
(b) the scheme is insolvent and is unlikely to return to solvency within a
reasonable time;
(c) the scheme has inadequate capital and is unlikely to have adequate
capital within a reasonable time;
(d) the scheme is, or is likely to become, unable to meet its liabilities;
(e) there is, or there may be, a risk to the security of the
scheme’s assets;
(f) there is, or there may be, a sudden deterioration in the
scheme’s financial condition;
(g) the scheme has ceased to issue fidelity certificates in the ACT;
(h) a ground prescribed under the prudential standards exists for the
suspension or cancellation of the approval of the scheme.
(2) If the planning and land authority proposes to suspend or cancel the
approval of the scheme, the authority must give the trustees of the scheme a
written notice—
(a) stating the grounds on which the authority proposes to suspend or
cancel the approval; and
(b) stating the facts that, in the authority’s opinion, establish
the grounds; and
(c) telling the trustees that the trustees may, within a stated reasonable
time, give a written response to the authority about the matters in the
notice.
(3) If, after considering any response given under subsection (2) (c), the
planning and land authority is satisfied that the grounds for suspending or
cancelling the approval have been established, the authority may, in writing,
suspend or cancel the approval.
(4) If the planning and land authority suspends or cancels an approval,
the authority must give written notice of the suspension or cancellation to the
trustees.
(5) Suspension or cancellation of an approval takes effect on the day when
notice of the suspension or cancellation is given to the trustees or, if the
notice states a later date of effect, that date.
(6) A suspension or cancellation under this section is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
108 Cancellation
of approval on application
(1) The planning and land authority may, in writing, cancel the approval
of an approved scheme if the trustees of the scheme ask the authority, in
writing, to do so.
(2) If the planning and land authority cancels the approval, the authority
must give written notice of the cancellation to the trustees.
(3) A cancellation under this section is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
109 Orders
consequential on etc suspension or cancellation
(1) If the planning and land authority suspends or cancels the approval of
a fidelity fund scheme under this division, the authority may apply to the
Supreme Court for orders to give effect to, or consequential on, the suspension
or cancellation.
(2) On application under subsection (1), the Supreme Court may make the
orders it considers just, including—
(a) orders for the winding-up of the scheme; and
(b) orders in relation to the assets and liabilities of the
scheme.
110 Address
for service for trustees
(1) The trustees of an approved scheme must, at all times, have an address
for service in the ACT for this Act.
(2) An address becomes the address for service for the trustees when
written notice of the address is given by the trustees to the planning and land
authority.
(3) The address continues to be the address for service until the planning
and land authority is given written notice by the trustees of another address
for service for the trustees.
Division
6.5 Auditors and actuaries of approved
schemes
111 Appointment
of auditor and actuary for approved scheme
(1) The trustees of an approved scheme must appoint—
(a) an auditor for the scheme; and
(b) an actuary for the scheme.
Note For the making of appointments (including acting appointments),
see Legislation Act, pt 19.3.
(2) Within 6 weeks after a person stops being the auditor or actuary for
an approved scheme, the trustees must appoint someone else to be auditor or
actuary.
(3) A person may only hold an appointment as auditor or actuary for an
approved scheme if—
(a) the planning and land authority has approved the appointment and its
terms; and
(b) the approval has not been revoked.
(4) The appointment of a person as auditor or actuary for an approved
scheme cannot take effect while an appointment of someone else in that position
is current.
112 Approval
of appointment of auditor or actuary
(1) The trustees of an approved scheme may, in writing, ask the planning
and land authority to approve—
(a) the appointment of a person as auditor for the scheme; or
(b) the appointment of a person as actuary for the scheme.
(2) The planning and land authority may approve the appointment only if
satisfied that the person meets the eligibility criteria for the appointment
prescribed under the prudential standards.
(3) The planning and land authority must give the trustees notice of the
authority’s decision to approve or refuse to approve the
appointment.
(4) If the planning and land authority refuses to approve an appointment,
the notice must include the reasons for the refusal.
113 Revocation
of approval of appointment of auditor or actuary
(1) The planning and land authority may, in writing, revoke the approval
of a person’s appointment as auditor or actuary for an approved scheme if
satisfied that the person—
(a) has failed to exercise adequately and properly the functions of the
appointment under this Act; or
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(b) does not meet 1 or more of the criteria for fitness and propriety
prescribed under the prudential standards; or
(c) does not meet the eligibility criteria for the appointment prescribed
under the prudential standards.
(2) The revocation of the approval takes effect on the day the revocation
is made.
(3) The planning and land authority must give a copy of the revocation to
the person and to the trustees of the approved scheme.
114 When
person stops holding appointment as auditor or actuary
A person stops holding an appointment as auditor or actuary of an approved
scheme if—
(a) the approval of the person’s appointment is revoked under
section 113; or
(b) the person resigns the appointment by giving written notice to the
trustees of the approved scheme; or
(c) the trustees end the appointment by giving written notice to the
person.
115 Notification
of appointment or ending of appointment of auditor or
actuary
(1) Within 14 days after the day the trustees for an approved scheme
appoint a person as auditor or actuary for the scheme, the trustees must give
the planning and land authority written notice of the appointment and anything
else prescribed under the prudential standards.
(2) Within 14 days after the day a person stops being auditor or actuary
for an approved scheme, the trustees must give the planning and land authority
written notice of that event, including the date when it happened and the
reasons for and circumstances of that event.
(3) Subsection (2) does not apply in relation to the revocation by the
planning and land authority of the approval of a person’s
appointment.
116 Compliance
with prudential standards by auditors and actuaries
(1) The auditor or actuary for an approved scheme commits an offence if
the auditor or actuary contravenes the prudential standards in relation to the
exercise of his or her functions as auditor or actuary for the scheme.
Maximum penalty: 60 penalty units.
(2) An offence against this section is an offence of strict
liability.
117 Auditor
and actuary to tell authority if scheme insolvent etc
The auditor or actuary for an approved scheme commits an offence if the
auditor or actuary—
(a) forms the belief that—
(i) the scheme is insolvent, or there is a significant risk that it will
become insolvent; or
(ii) the trustees have contravened this Act or another Territory law in
relation to the scheme; and
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and prudential
standards (see Legislation Act, s 104).
(b) fails to give the planning and land authority written notice about the
matter within 7 days after the day the auditor or actuary forms the
belief.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
118 Giving
of information to authority by auditor or actuary etc
(1) This section applies to a person who is, or has been, an auditor or
actuary for an approved scheme.
(2) The person may give information to the planning and land authority
about the approved scheme if the person considers that giving information will
assist the authority to exercise the authority’s functions under this
part.
(3) If this section applies to a person, the planning and land authority
may, by written notice given to the person, require the person to give stated
information about the approved scheme to the authority within a stated
reasonable time.
(4) A person commits an offence if the person contravenes a notice under
subsection (3).
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(1) The auditor for an approved scheme must, in accordance with the
prudential standards—
(a) exercise the functions of auditor for the scheme prescribed under the
prudential standards; and
(b) find out and report on whether the trustees of the scheme are
complying with the prudential standards; and
(c) prepare, and give to the trustees of the scheme, any reports required
under the prudential standards to be prepared by the auditor; and
(d) give the trustees any certificates relating to the scheme’s
accounts that are required under the prudential standards to be prepared by the
auditor.
(2) A report under subsection (1) (c) must deal with everything required
under the prudential standards to be dealt with in the report.
(3) A certificate under subsection (1) (d) must contain statements of the
auditor’s opinion on the matters required under the prudential standards
to be dealt with in the certificate.
(1) The actuary for an approved scheme must, in accordance with the
prudential standards—
(a) exercise the functions of actuary for the scheme prescribed under the
prudential standards; and
(b) prepare, and give to the trustees of the scheme, the reports
(if any) required under the prudential standards to be prepared by the
actuary.
(2) A report under subsection (1) (b) must deal with everything required
under the prudential standards to be dealt with in the report.
121 Certificates
and reports required to be given to authority
(1) The trustees of an approved scheme must, in accordance with the
prudential standards, give to the planning and land authority —
(a) a copy of each certificate given to the trustees under
section 119 (Auditor’s role); and
(b) the reports mentioned in that section and section 120.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
122 Special
actuary to investigate liabilities
(1) The planning and land authority may, by written notice given to the
trustees of an approved scheme, require the trustees to appoint, at the
scheme’s expense, an additional actuary (the special
actuary) to—
(a) investigate completely or partially the scheme’s liabilities as
at a particular time; and
(b) give the authority a written report within a stated period.
(2) The special actuary must not be—
(a) the actuary appointed under section 111 (Appointment of auditor and
actuary for approved scheme); or
(b) a trustee or officer of the scheme.
Note For who can be appointed a special actuary, see s
125.
(3) Within 7 days after the day the trustees are given the notice, the
trustees must appoint the special actuary and give the planning and land
authority written notice of the actuary’s name.
(4) The trustees of an approved scheme commit an offence if the trustees
fail to comply with subsection (3).
Maximum penalty: 100 penalty units.
(5) An offence against this section is a strict liability
offence.
123 Objection
to special actuary by authority
(1) This section applies if the trustees of an approved scheme notify the
planning and land authority of the special actuary’s name under section
122 (3).
(2) Within 7 days after the day the planning and land authority is
notified, the authority may give written notice to the trustees that the actuary
is not acceptable to the authority.
(3) If the trustees are given a notice under subsection (2), the trustees
must within 7 days after the day they are given notice—
(a) appoint a different special actuary; and
(b) give the planning and land authority written notice of the name of
that actuary.
(4) Subsection (2) applies whether the notification of the special
actuary’s name is under section 122 (3) or subsection (3) (b).
(5) The trustees of an approved scheme commit an offence if the trustees
fail to comply with subsection (3).
Maximum penalty: 100 penalty units.
(6) An offence against this section is a strict liability
offence.
124 Special
actuary’s report
(1) The trustees must ensure that a special actuary’s report is
given to the planning and land authority—
(a) within 30 days after the day the authority gave the notice under
section 122 (1); or
(b) within any additional further time the authority allows in
writing.
(2) The report must be signed by the special actuary.
(3) Also, the report must contain a statement of the special
actuary’s opinion about each of the following:
(a) the adequacy of the whole or part of the amount stated in the
scheme’s accounts in relation to its liabilities, and the amount that the
actuary considers would be adequate in the circumstances;
(b) the accuracy of any relevant valuations made by the actuary;
(c) the assumptions used by the actuary in making the
valuations;
(d) the relevance, appropriateness and accuracy of the information on
which those valuations were based;
(e) anything else in relation to which the prudential standards require a
statement of the actuary’s opinion to be included in the report.
(4) The trustees of an approved scheme commit an offence if the trustees
fail to comply with subsection (1).
Maximum penalty: 100 penalty units.
(5) An offence against this section is a strict liability
offence.
125 Who
can be appointed as special actuary
(1) A person can only be appointed as a special actuary for section 122
(Special actuary to investigate liabilities) if the person—
(a) is a Fellow of The Institute of Actuaries of Australia; or
(b) the planning and land authority has, in writing, approved the person
as an actuary for that section.
(2) The planning and land authority may approve a person only if satisfied
that the person has actuarial qualifications and experience that make the person
an appropriate person to exercise the functions of a special actuary for section
122.
126 Obligations
of trustees to auditors and actuaries
(1) The trustees of an approved scheme commit an offence if the trustees
fail to make arrangements necessary to enable the auditor or actuary for the
scheme, or any special actuary for the scheme, to exercise his or her functions
in relation to the scheme.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
127 Protection
of auditor and actuary from liability
The auditor or actuary for an approved scheme, and any special actuary for
the scheme, does not incur civil liability, or criminal liability under the
Defamation (Criminal Proceedings) Act 2001, for an act or omission done
honestly and without negligence for this part.
Division
7.1 Building
inspectors
128 Appointment
of building inspectors
The construction occupations registrar may appoint a person to be a
building inspector for this Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
(1) The construction occupations registrar must issue a building inspector
with an identity card that states the person is an inspector for this Act, or
stated provisions of this Act, and shows—
(a) a recent photograph of the person; and
(b) the name of the person; and
(c) the date of issue of the card; and
(d) a date of expiry for the card; and
(e) anything else prescribed under the regulations.
(2) A person who ceases to be an inspector must return his or her identity
card to the construction occupations registrar as soon as practicable, but no
later than 7 days after ceasing to be an inspector.
Maximum penalty: 1 penalty unit.
(3) An offence against subsection (2) is a strict liability
offence.
130 Inspection
of approved building work
A building inspector may inspect building work for which a building
approval has been issued to decide whether the building work is being, or has
been, carried out in accordance with this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and the
building code (see Legislation Act, s 104).
131 Inspection
of building work where no approval
(1) This section applies if the construction occupations registrar has
reasonable grounds for suspecting that—
(a) a building approval has not been issued for building work that is
being, or has been, carried out; or
(b) building work is not being, or has not been, carried out in accordance
with the approved plans for the work or a notice under part 4 (Stop and
demolition notices); or
(c) if plans or plans and specification have been approved under this Act
for the erection or alteration of a building—
(i) the completed building has deteriorated, or is likely to deteriorate,
so that the building is, or is likely to become, unfit for use as a building of
the class stated, or for the purpose stated, in the plans or plans and
specifications approved in relation to the most recent building work carried out
in relation to the building; or
(ii) the building is being used other than as a building of the class
stated, or for the purpose stated, in the plans or plans and specifications
approved in relation to the most recent building work carried out in relation to
the building; or
(d) for a building other than a building to which paragraph (c)
applies—the building has deteriorated to the extent that it is unfit for
any use; or
(e) a building or part of a building is no longer structurally sound;
or
(f) because of the use to which the building has been or is being put, the
maximum safe live load has been or is being exceeded or the load on the building
has been or is in excess of the load that the building was designed to carry;
or
(g) a building or part of a building is unsafe because of fire hazard or
unfit for use because of a danger to health.
(2) The construction occupations registrar may, in writing, authorise a
building inspector to carry out an inspection of the building work or the
building at any reasonable time.
(3) The construction occupations registrar may authorise the inspector to
do 1 or more of the following:
(a) make tests of the soil or the building materials used or to be used in
the building work or building;
(b) order the opening or cutting into or pulling down of any building
work.
(1) If, on inspection, it is found that there are grounds for the giving
of a stop notice, the builder must bear the costs (the inspection
costs) of any pulling down, opening or cutting into the building work
carried out during the inspection.
(2) However, if, on inspection, it is found that there are no grounds for
the giving of a stop notice, the Territory must bear the inspection costs and
the costs of making good any damage to the building work caused by the
inspection.
133 Power
to authorise required work
If the requirements of a notice under part 4 (Stop and demolition notices)
have not been complied with in accordance with the notice, the planning and land
authority may, in writing, authorise a building inspector, with the assistance
the construction occupations registrar considers necessary, to enter on the land
where the building work mentioned in the notice has been, is being or should
have been carried out and to carry out the requirements.
(1) A building inspector authorised under section 130 or section 131 to
inspect a building or building work may enter on land or premises where the
building has been erected or building work is being or has been carried
out.
(2) However, the building inspector is not authorised to remain on the
land or premises if, when asked by the occupier of the land or premises, the
building inspector does not produce—
(a) if authorised under section 130—the inspector’s identity
card; or
(b) if authorised under section 131—a written certificate signed by
the construction occupations registrar that the inspector is authorised to enter
the land or premises.
135 Obstructing
building inspector
(1) A person commits an offence if—
(a) the person knows that, or is reckless about the fact that, a person is
a building inspector; and
(b) the person obstructs, hinders, intimidates or resists the building
inspector in the exercise of the inspector’s functions.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) Strict liability applies to subsection (1) (b).
(1) In this Act:
building code means the Building Code of Australia prepared
and published by the Australian Building Codes Board, as amended from time to
time by—
(a) the Australian Building Codes Board; and
(b) the Australian Capital Territory Appendix to the Building Code of
Australia.
(2) The Minister may, in writing, make an Australian Capital Territory
Appendix to the Building Code of Australia.
Note Power given under an Act to make a statutory instrument
(including the Australian Capital Territory Appendix to the Building Code of
Australia) includes power to amend or repeal the instrument (see Legislation
Act, s 46 (1)).
(3) The Australian Capital Territory Appendix to the Building Code of
Australia is a disallowable instrument.
Note 1 A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
Note 2 An amendment or repeal of the Australian Capital Territory
Appendix to the Building Code of Australia is also a disallowable instrument
(see Legislation Act, s 46 (2)).
137 Publication
of building code etc in newspaper
(1) The planning and land authority must publish, in a daily ACT
newspaper, notice of the publication of each edition of the Building Code of
Australia and each amendment of it by the Australian Building Codes
Board.
(2) A notice is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(3) In this section:
daily ACT newspaper means a daily newspaper printed and
published in the ACT.
138 Inspection
of building code
(1) The construction occupations registrar must keep a copy of the
building code at his or her office.
(2) A person may, on request, inspect the building code kept by the
construction occupations registrar whenever the registrar’s office is open
for business.
139 Certified
copies of building code
In a proceeding before a court or the administrative appeals tribunal,
evidence of the building code as in force on a stated date or during a stated
period may be given by the production of an office copy of the building code
certified by the construction occupations registrar as a true copy as at the
date or during the period.
Part
9 Limitation of
liability
140 Meaning
of building action for pt 9
In this part:
building action—
(a) means an action (including a counterclaim) for damages for loss or
damage in relation to—
(i) defective building work; or
(ii) defective construction work other than building work; or
(iii) the negligent exercise by a licensed construction practitioner of a
function as a certifier, or the negligent failure to exercise such a function;
but
(b) does not include an action for damages for death or personal
injury.
141 Limit
of liability of people jointly or severally liable
(1) A court that decides an award of damages in a building action must
give judgment against each defendant to the action who is found to be jointly or
severally liable for the damage for the proportion of the total amount of the
damages that the court considers to be just, having regard to the extent of that
defendant’s responsibility for the loss or damage.
(2) The liability for damages of a person found to be jointly or severally
liable for damages in a building action is limited to the amount for which
judgment is given against the person, even if another Act or a rule of law
provides otherwise.
(3) A person found to be liable for a proportionate part of damages under
subsection (1) in a building action is not liable to contribute to the damages
apportioned to anyone else in the action or to indemnify any other person in
relation to the damages.
142 Limitation
of liability for building actions
(1) A building action may not be brought more than 10 years
after—
(a) if a certificate of completion of the relevant building work has been
given under this Act—the day the certifier gives the certificate;
or
(b) if paragraph (a) does not apply, but the certifier has, in the course
or on completion of the building work, inspected it—the day when the last
inspection took place; or
(c) if neither paragraph (a) nor paragraph (b) applies—the day the
relevant building was 1st occupied or used.
(2) If a person has given, in relation to the building work, a notice
under section 24 (2) that his or her appointment as certifier has ended, a
building action in relation to the building work may not be brought against the
person more than 10 years after the day the person gave the notice.
(3) Subsections (1) and (2) do not apply to a building action if a shorter
limitation period applies to the building action under another Territory
law.
(4) In this section:
building, in relation to building work that consists of, or
includes, the alteration of a building, means the building as
altered.
143 Service
of notices etc
(1) A notice or other document under this Act addressed to 1 person may be
served by attaching the notice in a prominent position on the building or, for
an alteration to a building, on the part of the building being altered, to which
the notice relates.
(2) If a notice under this Act is addressed jointly to 2 or more people, a
number of copies of the notice equal to the number of people to whom the notice
is addressed must be signed by the person giving the notice, and 1 of those
copies must be served on each of the people.
Note For how documents may also be served, see Legislation Act,
pt 19.5.
144 Giving
copies of documents
Copies of plans submitted under the Act must not be given to anyone except
in accordance with the instructions of—
(a) the lessee or the owner of the parcel of land where the building to
which the plans relate is erected; or
(b) if the plans relate to a unit within the meaning of the Unit Titles
Act 2001—the proprietor of the unit.
145 Review
by administrative appeals tribunal
(1) Application may be made to the administrative appeals tribunal for the
review of an appealable decision.
(2) The administrative appeals tribunal must not, in relation to a
proposed building, or a building as proposed to be altered, forming part of a
development within the meaning of the Land Act,
division 6.2—
(a) vary a decision issuing a stop notice under section 53 or a notice
under section 58 (2) or (4) (Further notices relating to stop notices) or
section 62 (1) (Notice to carry out building work), or substitute a decision for
such a decision it has set aside, in a way that would be contrary to an approval
of the development under that division; or
(b) vary a decision issuing a notice under section 58 (4), or substitute a
decision for such a decision it has set aside, unless the development has been
approved under that division.
(3) If the construction occupations registrar makes an appealable
decision, the registrar must give written notice of the decision to the relevant
person in relation to the decision.
(4) A notice under subsection (3) must be in accordance with the
requirements of the code of practice in force under the Administrative
Appeals Tribunal Act 1989, section 25B (1).
(5) The regulations may prescribe—
(a) what decisions are appealable decisions; and
(b) the relevant person for each appealable decision.
146 Recovery
of costs of work carried out by inspector
The costs incurred in the carrying out of the requirements of a notice
under part 4 (Stop and demolition notices) or a decision of the construction
occupations registrar by a building inspector or his or her assistants under
section 131 (Inspection of building work where no approval) or section 133
(Power to authorise required work) is recoverable as a debt owing to the
Territory from the person who was required to carry them out by the notice or
order.
147 Evidentiary
certificates
In a proceeding before a court or the administrative appeals
tribunal—
(a) a document purporting to be a copy of a notice under this Act and
certified as a true copy by the construction occupations registrar or of a
person authorised in writing by the registrar must be received in evidence and
must be taken without further proof to be a true copy of the notice;
and
(b) a notice certified as a true copy under this section must be taken,
unless the contrary is proved, to have been given by the person purporting to
give it and to have been given on the date stated in the certified copy of the
notice; and
(c) a document purporting to be a certificate given by the construction
occupations registrar and certifying that there was a building approval in force
for stated building work on a stated date or during a stated period is evidence
that on the stated date or during the stated period the building approval was in
force; and
(d) a document purporting to be a certificate given by the construction
occupations registrar and certifying that there was no building approval in
force for stated building work on a stated date or during a stated period is
evidence that on the stated date or during the stated period no building
approval was in force for the building work; and
(e) a certificate signed by the construction occupations registrar
certifying that a document attached to the certificate is a true copy of plans
approved by the registrar under this Act or of a part of such plans is evidence
of the plans or of the part as so approved; and
(f) a certificate signed by the construction occupations registrar and
certifying that, at a stated date a certificate of occupancy had not been issued
for a stated building or a stated part of the building is evidence that, at that
date, a certificate of occupancy had not been issued for the building or part of
a building.
Note A document that purports to be signed by the construction
occupations registrar is presumed to have been signed by the registrar unless
the contrary is proved (see Evidence Act 1995 (Cwlth), s 150.
148 Legal
liability for acts of registrar etc
(1) The construction occupations registrar, a building inspector, or a
person who was the registrar or an inspector, is not civilly or criminally
liable in relation to anything done or omitted to be done honestly by him or her
in the exercise of a function under this Act.
(2) A civil or criminal liability that would, apart from this section,
attach to the construction occupations registrar or a building inspector
attaches instead to the Territory.
149 Determination
of fees
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making
of determinations and regulations relating to fees (see pt 6.3).
(2) A fee for the issue of a building approval under section 28 (2) must
only be determined by reference to the value of building work for which the
building approval has been issued.
(3) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The construction occupations registrar may, in writing, approve forms
for this Act.
(2) If the construction occupations registrar approves a form for a
particular purpose, the approved form must be used for that purpose.
Note For other provisions about forms, see Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
151 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may make provision in relation to—
(a) the approval of building work in relation to particular buildings;
and
(b) anything else in relation to the approval of building work on
particular buildings.
(3) The regulations may make provision about a matter by applying,
adopting or incorporating (with or without change) a standard, or a provision of
a standard, as in force from time to time.
(4) The Legislation Act, section 47 (6) does not apply in relation to an
Australian Standard, or an Australian/New Zealand Standard, applied, adopted or
incorporated as in force from time to time under the regulations.
(5) The regulations may also prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty units
for offences against the regulations.
152 Definitions
for pt 11
In this part:
building controller—see the Building Act 1972
(repealed), section 5 (1).
commencement day means the day this Act commences.
153 Things
required to be given to building controller or deputy
(1) This section applies if, immediately before the commencement
day—
(a) a person was required to give the building controller or a deputy
building controller something; and
(b) the person had not given the building controller or deputy the
thing.
(2) The thing is taken to be required to be given to the construction
occupations registrar under this Act.
154 Application
of Act to Territory building work contracted before 1 July
2001
(1) This Act, other than section 49 (Compliance with building code), does
not bind the Territory in relation to building work if the Minister certifies
that a contract in relation to the work was entered into before 1 July
2001.
(2) Subsection (1) has effect despite the Legislation Act,
section 121 (Binding effect of Acts).
(1) Part 3 (Building work) does not apply to building work carried out
before 9 December 1992 in relation to a building if, had that building work been
carried out on or after that commencement, it would have been building work
carried out in relation to an exempt building.
(2) Part 5 (Building occupancy) does not apply to a building erected or
altered before 9 December 1992 if—
(a) the building work in relation to the building was completed before
that date; and
(b) the building would have been an exempt building if it had been erected
or altered after that date.
(3) Section 53 (1) (g) does not apply to building work in relation to an
exempt building if—
(a) approval was obtained for the building work before 9 December
1992; and
(b) the building work is carried out in accordance with—
(i) the approved plans for the building work; and
(ii) the conditions subject to which a building permit for the building
work was granted under the Building Act 1972 as in force at the time of
issue of the permit.
(4) The construction occupations registrar may not make a requirement of a
person under section 62 in relation to building work if—
(a) the building work is in relation to an exempt building; and
(b) approval for the building work was obtained before 9 December
1992; and
(c) the building work has been carried out in accordance
with—
(i) the approved plans for that building work; and
(ii) the conditions subject to which a building permit for the building
work was granted under the Building Act 1972 as in force at the time of
issue of the permit.
(5) In this section:
exempt building includes a building prescribed under the
Building Act 1972 as in force at the relevant time, section
6AA.
(1) This section applies to a person who was a certifier under the
Building Act 1972 (repealed).
(2) If, immediately before the commencement day, the person was a
government certifier, the person is taken to be a government certifier under
this Act and the person’s appointment continues as if it had been made
under this Act.
(3) If, immediately before the commencement day, the person was a
certifier other than a government certifier, the person is taken to be a
certifier other than a government certifier under this Act and the
person’s appointment continues as if it had been made under this
Act.
(4) If, before the commencement day, a certifier did something under the
Building Act 1972 as in force at any time, the certifier is taken to have
done that thing for this Act.
157 Application
to building work whenever happening
To remove any doubt, this Act applies to building work, whether done before
or after the commencement day.
158 Application
to contraventions of Act whenever happening
A reference in section 50 to a contravention of this Act is taken to
include a reference to a contravention of the Building Act 1972 as in
force at any time.
159 Requirements
to do things by times
(1) This section applies if—
(a) under the Building Act 1972 (repealed), a person was required
to do something; and
(b) immediately before the commencement day, the person had not done the
thing.
(2) The time for doing the thing ends when it would have ended if the
Building Act 1972 had not been repealed.
(3) The person is taken to be required to do the thing under this
Act.
(4) If the thing required the giving of something to the building
controller, the person complies with the requirement if the person gives the
thing to the construction occupations registrar.
160 Canberra
Sewerage and Water Supply Regulations
For section 69 (Certificate of occupancy), a certificate under the
Canberra Sewerage and Water Supply Regulations 1933 as in force
immediately before the repeal of the Energy and Water Act 1988 that the
plumbing, sewerage and drainage work carried out in building work complies with
the prescribed requirements for the building work that relate to plumbing,
sewerage and drainage work is evidence of the fact.
161 Government
buildings—application for fitness certificate
To remove any doubt, section 74 (Government buildings—application for
fitness certificate) applies to a building whether erected before or after the
commencement day.
162 Occupation
and use of buildings
A reference in section 76 (1) (b) (Occupation and use of buildings) to the
construction occupations registrar issuing a certificate of occupancy for the
building or part of the building includes a reference to—
(a) the building controller issuing the certificate under the Building
Act 1972 as in force at any time; and
(b) for a building erected or altered before 1 September 1972 or to which
the laws repealed by the Building Act 1972 continued to apply while that
Act was in force—a certificate for the building or part of the building
issued in accordance with the Canberra Building Regulations,
regulation 69A, as in force at the time of issue.
163 Meaning
of builder for pt 6
In section 84:
builder, in relation to residential building work or a
residential building, includes a person whose name was notified to the relevant
certifier under the Building Act 1972, section 37A (Notifications by
owner of land in relation to building work) at any time before its
repeal.
164 Building
inspectors and identity cards
(1) A person who was a building inspector under the Building Act 1972
immediately before the commencement day is taken to be a building inspector
under this Act.
(2) An identity card issued to a building inspector under the Building
Act 1972 and in force immediately before the commencement day is taken to
have been issued under this Act.
An approved scheme under the Building Act 1972 is taken to be an
approved scheme for this Act.
166 Existing
auditors and actuaries
A person who was an auditor or actuary under the Building Act 1972
immediately before the commencement day is taken to be an auditor or actuary
under this Act.
167 Application
for approval of appointment
(1) This section applies if, before the commencement day—
(a) the trustees of an approved scheme had asked for an approval under the
Building Act 1972 (repealed), section 83; and
(b) the planning and land authority had not made a decision on the
approval.
(2) The trustees are taken to have asked for the approval under this Act,
section 112.
168 Giving
information under s 118
A reference in section 118 (Giving of information to authority by auditor
or actuary etc) to a person who has been an auditor or actuary for an approved
scheme includes a reference to a person who has been an auditor or actuary for
an approved scheme under the Building Act 1972 as in force at any
time.
In section 130 (Inspection where approval) and section 131 (Inspection
where no approval):
this Act includes the Building Act 1972 as in force at
any time.
building approval includes a building approval under the
Building Act 1972 as in force at any time.
approved plans include approved plans under the Building
Act 1972 as in force at any time.
notice under part 4 includes a notice under the Building
Act 1972, part 4 as in force at any time.
170 Previously
authorised required work
(1) This section applies if, before the commencement day—
(a) the planning and land authority authorised a building inspector to
enter land and carry out building work under the Building Act 1972
(repealed), section 9 (4); and
(b) the building inspector had not carried out the work.
(2) The authorisation is taken to be an authorisation under this Act,
section 133.
171 Australian
Capital Territory Appendix to the Building Code of
Australia
In section 136:
Australian Capital Territory Appendix to the Building Code of
Australia includes the latest Australian Capital Territory Appendix to
the Building Code of Australia made under the Building Act 1972
(repealed).
172 Meaning
of building work for pt 9
In part 9:
building work includes building work under the Building
Act 1972 as in force at any time after 18 December 1998, in relation to
which a building approval was issued after 18 December 1998.
173 Limitation
of liability for building actions
For section 142—
(a) a certificate of completion includes a certificate of
completion under the Building Act 1972 (repealed); and
(b) a reference to an inspection or a certifier includes an reference to
an inspection or a certifier under the Building Act 1972 (repealed);
and
(c) a reference to a notice under section 24 (2) about the end of the
certifier’s appointment includes a reference to a certificate under the
Building Act 1972 (repealed), section 32 about the end of a
certifier’s appointment.
174 Evidentiary
certificates—s 147 (1) (c)
(1) A reference to document mentioned in section 147 (1) (c) includes a
reference to a document purporting to be a certificate given by the building
controller or registrar and certifying that a stated builder was or was not the
holder of a builder’s licence for stated building work or a building
licence included in a stated occupation class on a stated date or during a
stated period.
(2) In this section:
building approval—see the Building Act 1972
(repealed), section 5 (1).
builder’s licence—see the Building Act 1972
(repealed).
building permit means a building permit issued under the
Building Act 1972 as in force as at the time of issue of the
permit.
175 Evidentiary
certificates—s 147 (1) (f)
A reference in section 147 (1) (f) to a certificate signed by the
construction occupations registrar includes a reference to—
(a) a certificate issued by the building controller under the Building
Act 1972 as in force at the time of issue of the certificate; and
(b) for a building erected or altered before 1 September 1972 or to which
the laws repealed by the Building Act 1972, as in force at any time,
continued to apply while that Act was in force—a certificate for the
building or part of the building issued in accordance with the Canberra
Building Regulations, regulation 69A, as in force at the time of
issue.
176 Building
Regulations 2003
(1) The provisions set out in schedule 1 are taken, on the
commencement of this section, to be regulations made under this Act, section 151
(Regulation-making power).
(2) To remove any doubt and without limiting subsection (1), the
provisions set out in schedule 1 may be amended or repealed as if they had been
made as regulations by the Executive under this Act, section 151.
(3) To remove any doubt, the regulations mentioned in subsection (1) are
taken—
(a) to have been notified under the Legislation Act on the day this Act is
notified; and
(b) to have commenced on the commencement day; and
(c) not to be required to be presented to the Legislative Assembly under
the Legislation Act, section 64 (1).
(4) Subsections (1), (2) and (3) are laws to which the Legislation Act,
section 88 (Repeal does not end effect of transitional laws etc)
applies.
(5) This section expires on the day it commences.
177 Building
(Bushfire Emergency) Regulations 2003 (No 2)
(1) The provisions set out in schedule 2 are taken, on the
commencement of this section, to be regulations made under this Act, section 151
(Regulation-making power).
(2) To remove any doubt and without limiting subsection (1), the
provisions set out in schedule 2 may be amended or repealed as if they had been
made as regulations by the Executive under this Act, section 151.
(3) To remove any doubt, the regulations mentioned in subsection (1) are
taken—
(a) to have been notified under the Legislation Act on the day this Act is
notified; and
(b) to have commenced on the commencement day; and
(c) not to be required to be presented to the Legislative Assembly under
the Legislation Act, section 64 (1).
(4) Subsections (1), (2) and (3) are laws to which the Legislation Act,
section 88 (Repeal does not end effect of transitional laws etc)
applies.
(5) This section expires on the commencement day.
178 Regulations
modifying pt 11
The regulations may modify the operation of this part to make provision in
relation to any matter that is not, or is not in the Executive’s opinion
adequately, dealt with in this part.
This part expires 2 years after the commencement day.
The following legislation is repealed:
• Building Act 1972 A1972-26
• Building (Bushfire Emergency) Regulations 2003
SL2003-5
• Building Regulations 1972 SL1972-8.
Schedule
1 New Building
Regulations
(see s 176)
Australian Capital
Territory
Building Regulations
2003
Subordinate Law SL2003-
made under the
Building Act 2003
1 Name of regulations
These regulations are the Building Regulations 2003.
2 Dictionary
The dictionary at the end of these regulations is part of these
regulations.
Note 1 The dictionary at the end of these regulations defines
certain terms used in these regulations.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire regulations unless the definition, or another
provision of the regulations, provides otherwise or the contrary intention
otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
3 Notes
A note included in these regulations is explanatory and is not part of
these regulations.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
4 Offences against regulations—application of
Criminal Code etc
Other legislation applies in relation to offences against these
regulations.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against these regulations
(see Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
5 Exempt buildings—Act, s
12
(1) Each of the following is an exempt building:
(a) a fence or wall if—
(i) the height measured from any point on the fence or wall to the ground
is not more than 1.8m, excluding any part of the structure that is in the
ground; and
(ii) it does not form an integral part of an enclosure for a swimming
pool;
(b) a retaining wall if the height measured from any point at the top of
the retaining wall to the lowest adjacent ground level is not more than 1.2m,
excluding any part of the wall that is in the ground;
(c) an outdoor deck, carport, pergola, porch, veranda, shelter, gazebo,
shade structure or hail protection structure if—
(i) it has no wall; and
(ii) if it has a covering (including a sail or sail-like
element)—the total covering area is
25m2 or less; and
(iii) the height measured from any point on the structure to the ground is
not more than 3m, excluding any part of the structure that is in the ground;
and
(iv) the height measured from any point on top of any flooring of the
structure to the ground is not more than 1m, excluding any part of the structure
that is in the ground; and
(d) a shed, gazebo, greenhouse or similar structure the roof area of which
does not exceed 10m2;
Examples of similar
structure
conservatory, cubbyhouse, store, workshop, studio, outbuilding or class 10a
building
Note An example is part of these
regulations, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(e) an antenna or aerial assembly, if—
(i) the height measured from the highest part of the assembly to the
lowest is 5m or less, excluding any part of the assembly that is in the ground
or is part of the building the assembly is mounted on; and
(ii) the assembly is a class 10b building;
(f) an artificial pool, other than a bathtub, used, or for use, mainly for
swimming, wading or bathing, that cannot hold water to a depth of more than
300mm;
(g) an internal alteration to a building for which a certificate under the
Act, part 5 (Building occupancy) has been issued, if the alteration does not
change the classification of the building;
(h) an outdoor pond if—
(i) it is not used, or for use, mainly for swimming, wading or bathing;
and
(ii) the height measured from any point on the wall of the pond to the
lowest point on the base of the pond is not more than 1.2m, excluding any part
of the wall that is in the ground;
(i) a structure (for example, a barbeque or letterbox) if—
(i) it has a plan area not exceeding 2m2; and
(ii) the height measured from any point on the structure to the ground is
not more than 1.8m, excluding any part of it that is in the ground;
(j) a water tank if—
(i) it has a capacity not exceeding 17kL; and
(ii) the height measured from any point on the tank to the ground is not
more than 2.4m, excluding any part of the tank that is in the ground;
(k) an amusement ride, device to which AS 3533 applies or a portable
building or structure, including a tent, marquee, stall or booth, erected at a
place if—
(i) the building or structure is erected and used only in accordance with
any applicable provision of AS 3533; and
(ii) if the building code applies to the building—the building or
structure is a class 6, class 7 or class 10a building; and
(iii) the building or structure is not intended to be, and has not been,
at the place for longer than 2 months.
(2) Subregulation (1) does not apply if—
(a) the building work in relation to the exempt building
affects—
(i) the structural sufficiency, soundness or stability of part of a
building for which a certificate under the Act, part 5 (Building occupancy) has
been issued; or
(ii) a fire-rated wall, ceiling or floor; or
(iii) a ventilation or air-handling system, fire protection system or
other mechanical service; or
(iv) a fire-escape, emergency lift, stairway, exit or passageway to an
exit; or
(b) the building proposed to be built adversely affects the provision of
natural light or ventilation to a building for which a certificate under the
Act, part 5 has been issued.
(3) In this regulation:
assembly, in relation to an antenna or aerial, means the
antenna or aerial and its mast, tower and footing.
6 Buildings to which Act does not apply—Act, s
13 (2)
(1) The Act does not apply to the following buildings:
(a) bridges;
(b) dams;
(c) retaining walls associated with bridges, dams or roads;
(d) stiles;
(e) mesh fences less than 3m high measured from the top of the fence to
the ground, excluding any part of the fence that is in the ground;
(f) prefabricated bus shelters;
(g) prefabricated playground equipment;
(h) road signs;
(i) electricity network distribution equipment;
(j) reservoirs that are not part of an on-site stormwater detention
system;
(k) aqueducts;
(l) water and sewage treatment works;
(m) stormwater outfalls.
(2) The Act does not apply to poles and masts owned by—
(a) the Territory; or
(b) the Commonwealth; or
(c) a Territory authority; or
(d) a body established under a Commonwealth law; or
(e) the provider of an electricity supply or telephone service.
7 Exempt building work—Act, s 15 (b) and s 83
(b)
(1) The installation, alteration or removal of the following is exempt
building work for part 3 (Building work) and part 6 (Residential
buildings—statutory warranties, insurance and fidelity
certificates):
(a) an externally mounted photovoltaic panel or solar water heater for a
class 1 or class 10a building, if the building work—
(i) does not involve any alteration that would affect the structural
sufficiency or stability of the building; and
(ii) does not affect the building complying with the building
code;
(b) an externally mounted airconditioning unit for a class 1 or
class 10a building, if—
(i) the building work does not involve any alteration that would affect
the structural sufficiency or stability of the building; and
(ii) the building work does not affect the building complying with the
building code; and
(iii) the unit is not the main source of ventilation—
(A) if the unit is installed for a particular room—for the room;
or
(B) if the unit is installed for a building—for that
building.
Note The building code includes standards for load bearing and
waterproofing.
(2) In this regulation:
solar water heater, for a building, means a solar water panel
designed to be mounted externally, together with any hot-water tank that holds
water heated by the panel.
8 Criteria for appointment of government
certifier—Act, s 20 (4)
The criteria for the appointment of a government certifier for building
work are—
(a) a building approval for the work is in force; and
(b) a licensed builder has started the work; and
(c) the owner of the land where the work is being carried out cannot,
after making reasonable efforts, appoint a certifier for the work.
9 Copies of plans for building approval
applications—Act, s 26 (2) (a)
The prescribed number of copies is 3.
10 General requirements for building approval
applications—Act, s 26 (3)
(1) The following requirements are prescribed for an
application:
(a) the application must contain an estimate of the cost of the building
work calculated in accordance with a method determined in writing by the
construction occupations registrar;
(b) if building work is proposed to be carried out at or near a street or
place that is open to or used by the public—an application must contain
details of the precautions proposed to be taken to protect the safety of people
using the street or place when the building work is to be carried out;
(c) the application must state the area of the parcel of land.
(2) A determination under subregulation (1) (a) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
11 Building approval for building erection or
alteration—Act, s 26 (3)
(1) For an application in relation to building work that involves the
erection or alteration of a building, the following information must be included
in the application and plans accompanying the application:
(a) the class of the building according to the intended use of the
building as proposed to be erected or altered;
(b) what fire-resisting construction type (under the building code) the
building as proposed to be erected or altered will be, if applicable to the
building;
Note Fire-resisting construction type may not be applicable if an
alternative solution under the building code is used.
(c) for an application that relates to the erection or alteration of a
class 1 or class 10a building—the site classification of the parcel of
land in accordance with the classification provided by the building
code;
(d) for an application that relates to the alteration of a
building—
(i) the class and type of fire-resisting construction of the existing
building classified under the building code; and
(ii) the materials used in the existing building;
(e) the number of storeys of the building as proposed to be erected or
altered;
(f) the number of new dwellings (if any) created by the building
work;
(g) the floor area of the proposed building or proposed new part of the
building;
(h) the materials to be used in the frame, floor, walls and roof of the
proposed building or proposed new part of the building;
(i) if a performance requirement of the building code is to be complied
with by use of an alternative solution under the code—
(i) the performance requirement; and
(ii) the alternative solution; and
(iii) each assessment method used to show that the alternative solution
complies with the performance requirement;
(j) if the building code does not state a standard of work in relation to
any part of the proposed building work and it is intended to carry out that part
of the proposed building work in accordance with a standard of work stated in
another document—
(i) the nature of the proposed building work; and
(ii) the title of the document; and
(iii) each assessment method used to show that the proposed building work
complies with the standard of work stated in the document.
(2) In this regulation:
assessment method—see the building code.
performance requirement—see the building
code.
12 Building approval for removal or demolition of
buildings—Act, s 26 (3)
For an application in relation to building work that involves the removal
or demolition of a building, the following information must be included in the
application and plan accompanying the application:
(a) details of the methods to be used in the execution of the building
work including a work plan stated or set out in AS 2601 as in force on the
commencement of this regulation;
(b) the number of dwellings demolished (if any).
13 General requirements for plans—Act, s 27 (1)
(a)
(1) The plans must—
(a) be drawn in accordance with AS 1100 as in force on the commencement of
this regulation, unless—
(i) the plans were drawn before the commencement of the standard;
or
(ii) the plans complied with the standard at the time they were drawn;
and
(b) show any area marked on a certificate of title or deposited plan as an
easement; and
(c) if the building work to which the plan relates will require the
connection of a pipe to, or alteration of the connection of a pipe to the
sewerage system—show any point of connection of a pipe on the parcel of
land to the sewerage system; and
(d) if the building work to which the plan relates will require the
connection of a pipe to, or alteration of the connection of a pipe to a water
main—show any point of connection of a pipe on the parcel of land to the
water main; and
(e) if the building work to which the plan relates will require the
connection of a pipe to, or alteration of the connection of a pipe to a
stormwater drain—show any point of connection of a pipe on the parcel of
land to the stormwater system; and
(f) if the building work to which the plan relates will, when finished,
alter the surface stormwater drainage on parcel of land where the work is to be
done—show the proposed surface stormwater drainage on the parcel at the
completion of the work; and
(g) include a site plan on a scale of not less than 1:200 showing the
block, section, boundaries and dimensions of the parcel of land.
(2) In this regulation:
Australian Standard 1100 includes AS/NZS
1100.501:2002.
easement—see the Act, section 52.
stormwater system means a system of pipes, gutters, drains,
floodways and channels that are designed to collect or carry stormwater in or
through an urban area, other than for a single parcel of land.
utility service—see the Utilities Act 2000,
dictionary.
water main means a conduit or pipeline—
(a) owned, controlled or maintained by a utility service; and
(b) designed to carry drinking water supplied by the service.
14 Requirements for plans for alteration or erection
of building—Act, s 27 (1) (a)
(1) For plans that relate to the erection or alteration of a building, the
plans must contain sufficient information about the proposed finished
dimensions, arrangement, locations and inherent characteristic of materials
making up every element of the proposed building work—
(a) to allow a certifier to work out if a building erected or altered in
accordance with the plan would contravene the Act; and
(b) to allow a competent builder to carry out the building work in
accordance with the plans and the Act; and
(c) to allow a certifier to work out if the building work, if carried out,
complies with the plan and the Act.
(2) The information included on the plans under subregulation
(1)—
(a) must be consistent with AS 1100 (which is about technical drawing);
and
(b) must be apparent from reading the drawing, rather than having to take
measurements from the drawing.
(3) Plans are taken to satisfy subregulation (1) to the extent that they
contain the following information:
(a) the extent, overall dimensions and main construction material of a
wall, partition, floor or roof if—
(i) AS 1684 or AS 3623 applies to the framing for the wall, partition,
floor or roof; or
(ii) the framing is of the same scale and kind of arrangement as the
framing to which those standards apply;
(b) the location, overall dimensions and description or name of the
proprietary product that is sufficient to identify a truss product type for
mass-produced proprietary trusses if—
(i) the manufacturer publishes a written span table that states the
spanning capability of the truss; and
(ii) the table applies directly to a truss and its span stated in the
plan;
(c) for masonry work to which AS 3700 applies—the overall extent and
dimensions of the masonry work and structural details of reinforcement (if
any);
(d) for concrete work to which AS 2870 (which is about slabs and footings)
applies—the overall extent and dimensions of the concrete work and
structural details of reinforcement (if any).
Example of same scale and kind of
arrangement for par (a) (ii)
AS 1684 applies to houses only. However, under par (a) (ii), it can be
used for a fit-out that has the same proportions as a house or for part of a
building with the same loads and requirements as a house.
Note An example is part of the regulations, is not exhaustive and
may extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) The plans may contain other information.
15 Consultation and consent—Act, s 27 (1)
(b)
(1) The following consultations must take place or consents or approvals
be obtained in relation to proposed building work:
(a) any consent or approval required under a Territory law in relation to
the work;
(b) if the work is, or forms part of, a development requiring approval
under the Land Act, part 6.2—approval of the development;
(c) if the approval mentioned in paragraph (b) contains conditions
precedent to starting the building work—compliance with those
conditions;
(d) if the parcel of land is in a designated area—approval under the
Australian Capital Territory (Planning and Land Management) Act 1988
(Cwlth), section 12;
(e) if the work involves the erection or alteration of a lift—a
permit under the Scaffolding and Lifts Regulations 1950, regulation
17;
(f) consultation with ACTEW Corporation Limited in relation
to—
(i) the demolition of any building to which electricity, water or sewerage
services are supplied or to which an electricity or water meter is connected;
and
(ii) any encroachment of the proposed building or proposed new part of the
building onto an easement; and
(iii) the disposal of any non-domestic waste into the sewerage
system;
(g) consultation with the fire commissioner and the chief fire control
officer in relation to—
(i) any use of an alternative solution in relation to a
provision of the building code which deals with fire protection;
and
(ii) any proposed building or proposed new part of a building, as the case
requires, with a floor area exceeding 500m2 that is not a class 1 or
class 10 building;
(h) consultation with the chief executive responsible for urban services
in relation to—
(i) procedures to be used in the demolition of any building of class 2,
class 3, class 4, class 5, class 6, class 7, class 8 or class 9;
and
(ii) any waste management plan provided in the application;
(i) if it is proposed that the new building or new part of the building is
to be used for the sale or supply of liquor—consultation with the
registrar of liquor licences in relation to occupancy loading and kitchen, bar
and toilet facilities;
(j) consultation with the chief health officer in relation to the
application of any health law to the proposed new building or new part of the
building;
(k) consultation with the environment protection authority
if—
(i) it is proposed that the new building or new part of the building is to
be used to conduct a class A or class B activity; or
(ii) an accredited code of practice is applicable to an activity intended
to be carried out in the new building or new part of the building.
(2) It is sufficient compliance with the obligation to consult under
subregulation (1) (f), (g), (h), (i), (j) or (k) if—
(a) notification of the details of an application for a building approval
is given to the person with whom consultation is to take place; and
(b) 10 working days have elapsed since it has been given.
(3) In this regulation:
accredited code of practice means a code accredited under the
Environment Protection Act 1997, section 31 (1).
class A activity means an activity listed in the
Environment Protection Act 1997, schedule 1, clause 2.
class B activity means an activity listed in the
Environment Protection Act 1997, schedule 1, clause 3.
designated area—see the Australian Capital Territory
(Planning and Land Management) Act 1988 (Cwlth).
health law means a Territory law that has as 1 of its objects
or purposes the protection of public health.
16 Substantial alteration—Act, s 29
(2)
An alteration of a building is a substantial alteration if—
(a) the aggregate volume of the proposed alteration and any other
alteration made to the building during the 3 years immediately before the day
the application for building approval of the alteration is made is more than 50%
of the volume of the original building; and
(b) the volume of a building is measured by reference to roof and outer
walls.
Example of effect
1 A house is extended by 70%. The whole building must comply with this
Act, not just the extension (see par (a)).
2 A sunroom is added to a building, adding only 10% to the building. The
sunroom must comply with this Act, not the rest of the building (see par
(b)).
3 Two shops in a mall are to be combined to form a café. The
building work involves replacing all the shops’ fitout, including all
fixtures, the glazed shopfront walling and ceiling and removal of the common
wall. In the 3 years immediately before the date the application for building
approval is made, other shops in the mall have been altered similarly. The
total volume of the refitted shops, with the volume of the café, is more
50% of the volume of the mall. The whole mall must comply with this Act, not
just the café.
4 A photocopier room is to be added to an office building. In the 3 years
immediately before the date the application for building approval is made the
building has often had parts of its fitout altered. Open plan cubical work
stations were moved, enclosed meeting rooms were converted to open plan cubical
workstations, 3 walls of another enclosed office were moved to make a hallway
and new enclosed offices were created where open plan cubical workstations
originally were.
• the 1st alterations to the
cubical workstations did not involve altering or erecting fixtures, so the
alterations do not need to be included when working out the total volume of
alterations to the building
• the cubicle work stations erected in place of the enclosed meeting
rooms were fixtures, so the volume of each workstation, worked out by
multiplying its usable floor area by the height of the floor or roof above, must
be included in working out to the total volume of alterations to the
building
• the removal of the 3 walls of the enclosed office to make a hallway
prevent the room functioning as a room, so the volume of the room must be
included in working out the total volume of the alterations to the
building
• the walls erected to form a room or substantially enclosed space
must be included to work out the total volume of the alterations to the
building
However, the total of the volumes of the alterations made to the building,
when added to the volume of the proposed photocopier room, amounted to 45% of
the building, so only the proposed room has to comply with this Act, not the
whole building.
5 A building contains a nightclub where a fire sprinkler system was
installed 1 year ago. Plans now propose to upgrade the airconditioning system
throughout the building. The volume of the sprinkler pipework and proposed
airconditioning ducts are included in working out the total volume of
alterations to the building, but the volume of the spaces they can sprinkle or
ventilate is not included.
Note An example is part of the
regulations, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
17 Significantly different from plan
amendment—Act, s 32 (4)
(1) A building built to amended plans (the new building) is
significantly different from a building built to the unamended plans (the
old building) if—
(a) the floor area, roof area or volume of the new building has increased
or decreased by more than 1%; or
(b) the new building is not same class of building as the old building;
or
(c) if the old building had parts that are not of the same class of
building—
(i) the position of the parts in the new building has changed;
or
(ii) the floor area, roof area or volume of the parts in the new building
has increased or decreased by more than 1%; or
(d) any dimension of the perimeter of the new building, including the
perimeter of the building’s footprint or an elevation, has changed by more
than 1%; or
(e) the type of material to be used in the new building to form a
structural element, roof, floor or external wall cladding has changed;
or
(f) the number of storeys or buildings in the new building has
changed.
Example of change of
dimension
The height of the building increases from 3m to 3.5m. The change of the
dimension is more than 1%.
Note An example is part of the regulations, is not exhaustive and
may extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
18 Considerations about whether work done in proper
way—Act, s 42 (2)
In deciding whether building work has been done in a proper way, the
following considerations must be taken into account:
(a) whether the work uses a product or system in accordance with any
accessible instructions, directions, guidelines or suggestions of the maker or
seller of the product or system;
Examples of instructions that are not
accessible
1 instructions not in English
2 an information leaflet printed 10 years ago that is now
unavailable
Note An example is part of the
regulations, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(b) whether the work is in accordance with any relevant rules or
guidelines published by Standards Australia;
(c) whether, as part of the work, a product or system is being, or has
been, used in a way that a reasonable person would expect is contrary to the
intended use of the product or system;
(d) whether, as part of the work, a product or system is being, or has
been, used in a way that the maker has given written notice will void the
maker’s warranty;
Example of use
Installing roof sheeting so it is level at any point is use in a way that a
reasonable person would expect to be contrary to the intended use of the
sheeting if the manufacturer’s published literature indicates that the
sheeting’s warranty is voided if the sheeting is installed at a fall of
less than 1° off level.
(e) whether a reasonable person doing the work would know or reasonably
suspect that the use of a product or system in a particular way would cause more
instability, or affect the durability or soundness of the product or system or
of the building work than if the product or system were used
appropriately;
(f) how reasonable it is in all the circumstances for the user of a
product or system to rely on the maker’s statement that the product or
system complies with a stated standard;
(g) whether the building work contravenes the Act or another Territory
law.
19 Considerations about whether work done in skilful
way—Act, s 42 (2)
In deciding whether building work has been done in a skilful way,
consideration must be taken of whether the work has been carried out to
completion with enough care so that it does not have to be redone to adequately
serve its intended purpose or comply with the Act.
Examples
1 A timber stairway was built. Its elements were glued and nailed together
permanently. The top step was too high to comply with a relevant provision of
the building code. The step had to be disassembled or removed to rectify that
noncompliance. The building of the step was not done in a skilful
way.
2 The potential noncompliance in the step mentioned in example 1 was
noticed before the components of the step were permanently fastened together.
It was adjusted to ensure it complied with the building code without having to
undo or redo any completed building work. That noncompliance and adjustment do
not indicate that the building of the stair was not done in a skilful
way.
Note An example is part of the regulations, is not exhaustive and
may extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
20 Stages of building work—Act, s 43
(1)
Note The Act, s 43 (2) requires certain things to be done before
building work proceeds beyond the dampcourse level of a building.
The prescribed stages of building work are—
(a) completion of excavation, placement of formwork and placement of steel
reinforcing for the footings before any concrete for the footings is
poured;
(b) completion of the structural framework and, for a class 1 or class 10
building, before the placement of any internal lining; and
(c) for a class 1 or class 10 building—completion of placement of
formwork, and placement of steel reinforcing, for any reinforced concrete member
before any concrete for the member is poured; and
(d) for a building other than a class 1 or class 10
building—completion of any reinforced concrete member, before any
concrete for the member is poured, stated by the certifier in the relevant
building approval; and
(e) completion of the building work approved in the relevant building
approval.
21 Alternative to new survey plan—Act, s 43 (2)
(a) (ii)
(1) This regulation applies to building work if—
(a) the work is only in relation to an extension or alteration of an
existing class 1 or class 10 building (the original building);
and
(b) any building resulting from the work is to be located completely on
the same parcel of land (the original land) where the original
building is.
(2) A plan (the original survey plan) signed by a registered
surveyor is prescribed in relation to building work if—
(a) the original survey plan contains sufficient information to allow the
certifier to form an accurate opinion about whether the building work complies
with the Act, section 43 (2) (b); and
(b) the arrangement of the boundaries of the original land, and location
and levels of the original building, have not changed since the original survey
plan was made; and
(c) no building on which the work is to be carried out is, or building
resulting from the work is to be, situated closer than 100mm away from the
boundary of the parcel of land.
22 Consent or approval on completion of building
work—Act, s 48 (2) (d)
The following consents or approvals are prescribed:
(a) if an approval for building work given under the Land Act is subject
to a condition—the approval of the chief planning executive to the way in
which the condition has been satisfied;
(b) approval of the installation of any fire appliance in the new building
or new part of the building by the fire commissioner or other person authorised
under the Fire Brigade Regulations 1958, regulation 3 (2);
(c) approval under the Scaffolding and Lifts Regulations 1950,
regulation 21.
23 Residential building work to which Act, pt 6 does
not apply
The Act, part 6 (Residential buildings—statutory warranties,
insurance and fidelity certificates) does not apply in relation to residential
building work if the cost of the work is less than $12 000.
24 End of statutory warranties—Act, s 88
(4)
(1) The prescribed period for the end of a warranty is—
(a) for residential building work in relation to a structural
element—6 years after the completion day for the work; and
(b) for residential building work in relation to a non-structural
element—2 years after the completion day for the work.
(2) In this regulation:
non-structural element, of a building, means a component of
the building that is not a structural element.
structural element, of a building, means—
(a) an internal or external load-bearing component of the building that is
essential to the stability of the building or any part of it; or
(b) any component (including weatherproofing) forming part of the external
walls or roof of the building.
Examples for par (a)
a foundation, floor, wall, roof, column or beam
Note An example is part of the regulations, is not exhaustive and
may extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
25 Residential building work minimum
insurance—Act, s 90 (1) (b)
The prescribed amount for insurance cover is $85 000.
26 Residential building work period of
insurance—Act, s 90 (1) (c) and (d)
The prescribed period is 5 years.
27 Residential building work period for
claims—Act, s 90 (1) (i)
The prescribed period is 90 days.
28 Amount insurer not liable for—Act, s 91
(1)
The prescribed amount is $500.
29 If builder defaults and work less than deposit
paid—Act, s 93 (3) (b)
The prescribed amount is $10 000.
30 Appealable decisions and relevant
people—Act, s 145 (5)
(1) The following decisions of the construction occupations registrar are
appealable decisions:
(a) refusing to approve a certifier’s resignation under the Act,
section 19 (3) (a); or
(b) refusing to appoint a government certifier for building work under the
Act, section 20 (4); or
(c) refusing to extend or further extend a period under the Act,
section 36 (2) (Period for which approvals operate); or
(d) issuing a stop notice under the Act, section 53; or
(e) issuing a notice under the Act, section 58 (2) or (4) (Further notices
relating to stop notices) or section 62 (1) (Notice to carry out building work);
or
(f) refusing to issue a certificate of occupancy under the Act,
section 69 (1), (2) or (3) or a certificate under the Act,
section 71 (Certificate for building work involving demolition) or section
72 (Certificate for building work involving erection of structure); or
(g) refusing to issue a certificate of regularisation to a person other
than the Territory or the Commonwealth under the Act, section 75;
or
(h) refusing to give an approval under the Act, section 77 (3) (Use of
buildings restricted); or
(i) working out the cost of building work under the Act,
section 86 (1) (b) (ii); or
(j) refusing to give an approval under the Act, section 90 (1) (j)
(Complying residential building work insurance).
(2) Each of the following is the relevant person for the
appealable decision to which it relates:
(a) for a decision mentioned in subsection (1) (a)—to the certifier;
or
(b) for a decision mentioned in subsection (1) (b)—to the applicant
for the appointment of a government certifier; or
(c) for a decision mentioned in subsection (1) (c)—to the applicant
for the extension; or
(d) for a decision mentioned in subsection (1) (d)—to the person
carrying out the building work; or
(e) for a decision mentioned in subsection (1) (e)—to the person
required to carry out the stated building work; or
(f) for a decision mentioned in subsection (1) (f) or (g)¾to the applicant for the certificate; or
(g) for a decision mentioned in subsection (1) (h) or (j)—to the
applicant for approval; or
(h) for a decision mentioned in subsection (1) (i)—the
builder.
Dictionary
(see reg 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to these regulations.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• chief executive
• may (see s 146)
• person
• under.
Note 3 Terms used in these regulations have the same meaning that
they have in the Building Act 2003 (see Legislation Act, s 148). For
example, the following terms are defined in the Building Act 2003,
dict:
• alteration
• building code
• building work
• certificate of regularisation
• class
• Land Act
• structure.
AS 1684 means the Australian Standard 1684 (Residential
timber-framed construction—design criteria) as in force from time to
time.
AS 2870 means the Australian Standard 2870 (Residential slabs
and footings—construction) as in force from time to time.
AS 3533 means the Australian Standard 3533 (Amusement rides
and devices—design and construction) as in force from time to
time.
AS 3623 means the Australian Standard 3623 (Domestic metal
framing) as in force from time to time.
AS 3700 means the Australian Standard 3700 (Masonry
structures) as in force from time to time.
Schedule
2 New Building (Bushfire Emergency)
Regulations
(see s 177)
Australian Capital
Territory
Building (Bushfire Emergency) Regulations
2003 (No 2)
Subordinate Law SL2003-
made under the
Building Act 2003
1 Name of regulations
These regulations are the Building (Bushfire Emergency) Regulations 2003
(No 2).
2 Notes
A note included in these regulations is explanatory and is not part of
these regulations.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
3 Some building work approved
(1) In this regulation:
prescribed building means a building for which there is a
plan of works endorsed under the Land (Planning and Environment) (Bushfire
Emergency) Regulations 2003, regulation 9 (Endorsement of plans).
(2) Building work on a prescribed building is taken to be approved if the
work—
(a) is work mentioned in the endorsed plan of works; and
(b) is a development to which, under the Land (Planning and
Environment) (Bushfire Emergency) Regulations 2003, regulation 7 (Certain
developments exempted from Act, div 6.2), the Land (Planning and
Environment) Act 1991, division 6.2 (Approvals) does not apply.
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• contravene
• exercise
• function
• law
• may (see s 146)
• must (see s 146)
• national land
• planning and land authority
• Territory land
• under.
actuary, for an approved scheme, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
alteration, of a building, includes—
(a) demolition of part of the building; and
(b) an addition to the building.
approval criteria, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
approval requirement, for plans—see section
29.
approved plans—
(a) means plans that relate to building work for which a building approval
is in effect; and
(b) includes amended plans.
approved scheme, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
authorised insurer means a body corporate authorised to carry
on insurance business under the Insurance Act 1973 (Cwlth),
section 12.
basic building work—see section 10.
builder, in relation to residential building work or a
residential building, for part 6 (Residential building—statutory
warranties, insurance and fidelity certificates)—see section 84.
builders licence means a licence issued under the
Construction Occupation (Licensing) Act 2003 in the construction
occupation of builder.
building—
(a) for Act—see section 7; but
(b) for part 6 (Residential building—statutory warranties, insurance
and fidelity certificates)—see section 84.
building action, for part 9 (Limitation of
liability)—see section 140.
building approval means a building approval under part
3.
building code—see section 136 (1).
building inspector means a person appointed under section
128.
building work—
(a) for Act—see section 6; but
(b) for part 6 (Residential building—statutory warranties, insurance
and fidelity certificates)—see section 84.
certificate of occupancy means a certificate under section
69.
certificate of regularisation—see section 75
(1).
certifier—
(a) for building work—means a person who is appointed to act as
certifier under section 19 (Appointment of certifiers), or as government
certifier under section 20 (Appointment of government certifiers), for the work;
but
(b) for division 3.2 (Certifiers and government certifiers)—see
section 17.
class, of building, means that class of building under the
building code.
complying residential building work insurance, for part 6
(Residential building—statutory warranties, insurance and fidelity
certificates)—see section 84.
completion day, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
cost, for part 6 (Residential building—statutory
warranties, insurance and fidelity certificates)—see section 86.
dwelling means a class 1 or class 2 building.
easement, for part 4 (Stop and demolition notices)—see
section 52.
eligible person, for division 3.2 (Certifiers and government
certifiers)—see section 17.
exempt building—see section 12.
fidelity certificate, for building work, for part 6
(Residential building—statutory warranties, insurance and fidelity
certificates)—see section 84.
fidelity fund scheme, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
government certifier, for division 3.2 (Certifiers and
government certifiers)—see section 17.
Land Act means the Land (Planning and Environment) Act
1991.
lease—see the Land Act, section 159.
licensed construction practitioner means an entity licensed
under the Construction Occupations (Licensing) Act 2003.
licence number—see the Construction Occupations
(Licensing) Act 2003, section 23 (1) (c).
load includes superimposed load.
occupation class—see the Construction Occupations
(Licensing) Act 2003, dictionary.
owner, of land, means—
(a) if the land is held under a lease from the Commonwealth for a term of
years—the lessee; or
(b) if the land is subdivided under the Unit Titles Act
2001—
(i) if building work has been, is being or is to be carried out on the
land for the owners corporation—the owners corporation; or
(ii) if building work has been, is being or is to be carried out on the
land for the proprietor of a unit—the proprietor; or
(iii) in any other case—the owners corporation; or
(c) if the land is occupied under a tenancy from the Territory or the
Commonwealth—the occupier; or
(d) if the Territory carries out or proposes to carry out building work on
the land—the Territory; or
(e) if the Commonwealth carries out or proposes to carry out building work
on the land—the Commonwealth.
owner-builder means an entity licensed under the
Construction Occupations (Licensing) Act 2003 in the occupation class of
owner-builder.
prescribed requirements, for division 5.1 (Certificates of
occupancy and other certificates)—see section 66.
prudential standards, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
removal, of a building—
(a) means the removal of the building from a place for re-erection, with
or without further alteration, at another place; and
(b) includes the demolition of part of the building removed or proposed to
be removed.
residential building, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
residential building work, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
special actuary, for part 6 (Residential
building—statutory warranties, insurance and fidelity
certificates)—see section 84.
specialist building work—see section 9.
stage, in relation to building work, for part 3 (Building
work)—see section 16.
stop notice—see section 53 (2).
storey—
(a) means a floor level within a building that—
(i) is between 2 other floor levels; or
(ii) has a floor level above or below it; but
(b) does not include a mezzanine level or a space that contains only 1 or
more of the following:
(i) a lift shaft, stairway, meter room;
(ii) a bathroom, shower room, laundry, toilet or other sanitary
compartment;
(iii) accommodation intended for up to 3 vehicles; and
(c) for part 6 (Residential building—statutory warranties, insurance
and fidelity certificates)—does not include a storey below the ground
storey (see section 84).
structure—see section 8.
waste management plan, in relation to building work that
involves the demolition or alteration of a building, means information that
includes—
(a) the extent of work to be undertaken; and
(b) the nature and amount of waste that will be generated; and
(c) the place to which each kind of waste will be taken by the builder, or
the builder’s agent, for reuse, recycling or disposal; and
(d) any other information prescribed under the regulations.
Endnote
Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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